Section IV. State Jail Felonies: Texas Penal Code §12.35

as a Class A misdemeanor with a maximum of 12 months in jail if it is shown that the defendant had previously been convicted of an intoxication-related offense as defined in the statute. 47

On the other hand, the applicable general enhancement statute for a Class B misdemeanor for one previously convicted of a Class B or greater crime does not increase the maximum jail one could receive and remains at 6 months not increasing the offense level, merely the punishment.

48

So which applies whenever a person gets his second DWI? Can it be filed as a higher offense level or merely have the punishment enhanced?

Texas Penal Code §12.43(d) says “[i]f the punishment scheme for an offense contains a specific enhancement provision increasing punishment for a defendant who has previously been convicted of the offense, the specific enhancement provision controls over this section.” The DWI enhancement provisions however are jurisdictional and raise the level of the crime alleged and the just quoted statute speaks only to punishment. Therefore, the Penal Code provides two separate statutes for potentially increasing the punishment in the case of a person’s second driving while intoxicated charge.49

To illustrate further, should the person have two previous convictions under Texas Penal Code, §49.04 [DWI], §49.05 [flying while intoxicated], §49.06 [boating while intoxicated] or §49.065 [assembling or operating an amusement ride while intoxicated] or one previous conviction for intoxication manslaughter,50 a driving while intoxicated charge can be filed as a third degree felony with a potential of 10 years in prison. 51 Both of these examples show how the prior conviction(s) are used to enhance the jurisdictional/offense level of the new charge not to merely increase the punishment.

A Class A DWI is now a Class B DWI based on one prior. The basic logic of the preceding paragraphs’ rationale is still good, but it was set on its ear a bit by the Court of Criminal Appeals in 2018 when the Court decided the legislature meant to leave a second DWI a Class B misdemeanor and only use the language of §49.09 as a punishment issue. I have no idea why the Court felt the plain reading of §49.09 was ambiguous but that is now the law. “[U]nlike the existence of two prior convictions for felony DWI, which is an element of the offense of felony DWI, the existence of a single prior conviction for misdemeanor DWI is a punishment issue.”52 I am confident my reasoning is still good as to deciding if a statute enhances the jurisdiction or just the punishment, but the Oliva court decided the long history of statutory interpretation of reading the plain meaning of a statute did not apply to a second DWI. Go figure.

47 Texas Penal Code §49.09(a). Class A misdemeanors carry a maximum term of confinement of one year. See Texas Penal Code §12.21 for Class A Misdemeanor punishments. 48 Texas Penal Code §12.43(b). See infra Section III. 49 See State v. Morgan, 160 S.W.3d 1, 4 (Tex. Crim. App. 2003). 50 Texas Penal Code, §49.08 [Intoxication Manslaughter]. 51 Texas Penal Code, §49.09(b) 52 Oliva v. State, 548 S.W.3d 518, 519–20 (Tex. Crim. App. 2018).