Third and fourth DWI in Texas

Is a third DWI a felony in Texas?

Yes, a third-degree felony. Penal Code § 49.09(b) reaches that level once two prior intoxication convictions are shown, and § 12.34 punishes a third-degree felony by two to ten years in prison and a fine of up to $10,000.

The count is not the only route. Section 49.09(b)(1) makes the new offense a third-degree felony where the person has one previous conviction for intoxication manslaughter under § 49.08, or an offense from another state with substantially similar elements, without waiting for a second prior. Subsection (b)(2) is the two-prior route, and it counts convictions for operating a motor vehicle, an aircraft, a watercraft, or an amusement ride while intoxicated.

What qualifies as a prior is settled by the same section. Subsection (d) makes a conviction final whether the sentence was imposed or probated, and subsection (g) treats deferred adjudication community supervision under art. 42A.102 for driving or boating while intoxicated as a conviction. Subsection (b) states no window, so the age of a prior does not decide whether it counts.

Prison or probation on a felony DWI in Texas?

Both are on the table, and one finding closes the second. Code of Criminal Procedure art. 42A.053(a) lets a judge suspend the imposition of the sentence and grant community supervision; subsection (c) bars it only where the sentence exceeds 10 years.

A third-degree felony cannot exceed 10 years under § 12.34, so the length rule does not remove the option on its own. Article 42A.054(b) does: it makes art. 42A.053 inapplicable where it is shown that a deadly weapon was used or exhibited during the commission of a felony offense, and the defendant used or exhibited it or was a party who knew one would be used. On a DWI, whether the vehicle was a deadly weapon is a question for a defense lawyer rather than for a class provider.

Where supervision is granted, it is not served entirely out of custody. Article 42A.401(a) requires a judge granting community supervision to order not less than 10 days of confinement in county jail where the defendant was punished under § 49.09(b). That is more than three times the 72 hours the same article attaches to a second offense punished under § 49.09(a), and a first offense punished under § 49.04 appears nowhere on the article’s list at all.

What does a fourth DWI in Texas add?

Not a higher offense level. Section 49.09(b) counts two priors and stops, so a fourth DWI is still a third-degree felony as that section writes it. The exposure moves to the punishment range instead, under chapter 12.

The two rows below the first are narrower than they look. Section 12.42(a) raises a third-degree felony to second-degree punishment where the defendant “has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a)”. Section 12.42(d) reaches 25 to 99 years or life on two previous final felony convictions, and it requires the second of them to be for an offense that occurred after the first conviction had become final.

One rule stops the same conviction doing both jobs. Section 49.09(g) says a conviction may be used for enhancement under § 49.09 or under Subchapter D of chapter 12, but not under both. A prior that has already been spent making the offense a felony is not available again to raise the punishment range, which is why the fourth-offense answer turns on what is in the record rather than on the number four.

What does felony DWI probation require in Texas?

The same education layer as a second offense, plus an interlock and county jail. Article 42A.404(a) applies to any defendant punished under § 49.09, and § 49.09(b) is part of § 49.09.

The class: art. 42A.404(a) requires a defendant punished under § 49.09 to complete a TDLR-regulated educational program for repeat offenders. That is the 32-hour program, not the 12-hour one that art. 42A.403 attaches to a first offense, and a felony DWI does not change which of the two the order names.

The program is the 32-hour DWI Intervention class, the same one a second offense takes. Article 42A.404(b) lets a judge waive it where the defendant shows good cause by written motion, and subsection (b-1) makes the waiver mandatory where the defendant completed education at a residential treatment facility under art. 42A.4045.

• An evaluation for drug or alcohol dependence, required on every chapter 49 community supervision by art. 42A.402(a).
• An ignition interlock device, which art. 42A.408(c)(2) makes mandatory rather than discretionary for a defendant punished under § 49.09(a) or (b).
• Not less than 10 days in county jail, under art. 42A.401(a).

Completion is reported rather than self-certified. Article 42A.406(b) requires the instructor to notify the Department of Public Safety for inclusion in the driving record and to notify the community supervision department, and subsection (a) requires the court clerk to report the requirement itself, along with any waiver.

What happens to your license after a third DWI?

180 days to two years. Transportation Code § 521.344(a)(2)(B) sets that range for anyone punished under § 49.09(a) or (b), so the suspension on a third offense is the same range as on a second.

Two things move it. Subparagraph (C) of the same subsection raises the floor to one year where § 49.09(h) also applies, which is an offense committed within five years of the previous one; that subsection also requires the interlock to stay on each vehicle the defendant owns or operates until the first anniversary of the ending date of the suspension, at the defendant’s own cost. And § 521.344(f) directs the director to suspend the license of a person who does not successfully complete the repeat offender program once the date for it has passed according to department records.

Driving through the suspension has one route. Article 42A.407(g) lets a person whose license is suspended for an offense under §§ 49.04–49.08 drive during the suspension if they use an ignition interlock for the entire period and hold an occupational driver’s license carrying an ignition interlock designation under Transportation Code § 521.2465. On a felony DWI the interlock half of that is already a condition of the supervision under art. 42A.408(c)(2).

Reinstating costs $100 under § 521.313(a), and the Department of Public Safety prints the same figure alongside the SR-22 condition: the certificate “must be maintained for two years from the date of conviction.”

Where a third offense sits relative to the two below it is set out in the full Texas DWI penalties guide, and the offense this one is counted from is covered in the guide to a second DWI in Texas. If you are holding a felony order and are not sure which program it names, send us a photo of it and we will read it off before you book anything.