Texas Standard Possession Order: What Parents Need to Know

Short answer: In Texas, driving while intoxicated with a passenger younger than 15 is a state jail felony under Penal Code §49.045, even on a first offense and even if no one is hurt. A conviction carries 180 days to 2 years in a state jail and a fine of up to $10,000. The judge cannot grant deferred adjudication, and a magistrate must generally order an ignition interlock as a bond condition. The arrest can also trigger a separate Child Protective Services (CPS) investigation and affect custody. These cases are defensible, but the stakes are much higher than a typical DWI, so it's important to get a lawyer involved immediately.

Most first-time DWI arrests in Texas are misdemeanors. That changes the moment a child under 15 is in the car. A parent driving home from a restaurant in Fort Worth, a grandparent picking up kids after a family gathering in Arlington, or a coach giving a ride to a team member in Frisco can all face a felony charge.

At Howard Lotspeich Alexander & Williams, PLLC (HLAW), we defend DWI with child passenger cases throughout Tarrant, Dallas, Denton, Collin, Johnson, and Parker counties. This guide explains the law, the penalties, how it differs from a standard DWI, what happens with CPS, and how these cases are defended.

Key Takeaways

• It's a felony from the start. DWI with a child passenger under 15 is a state jail felony under Penal Code §49.045, with no prior conviction required.
• Penalty range. A conviction carries 180 days to 2 years in a state jail and a fine of up to $10,000 under Penal Code §12.35.
• No deferred adjudication. Code of Criminal Procedure art. 42A.102 bars deferred adjudication for this offense.
• Interlock on bond. Under art. 17.441, a magistrate must require an ignition interlock as a bond condition, installed within 30 days, unless it isn't in the best interest of justice.
• Each child can be a separate count. Prosecutors may file one count for each child passenger.
• CPS may get involved. Law enforcement may refer the case to the Texas Department of Family and Protective Services (DFPS), which runs its own civil investigation.
• The license case runs separately. You still face the ALR license suspension process and its 15-day deadline.

What Does Texas Law Say About DWI With a Child Passenger?

Under Texas Penal Code §49.045, a person commits the offense if:

1. The person is intoxicated while operating a motor vehicle in a public place; and
2. The vehicle is occupied by a passenger younger than 15 years of age.

"Intoxicated" has the same meaning as in any Texas DWI case. Under §49.01, it means either not having the normal use of your mental or physical faculties because of alcohol, drugs, or another substance, or having an alcohol concentration of 0.08 or more. So the State can prove a child passenger case with a breath or blood result at or above 0.08, or without one, by relying on driving behavior, field sobriety tests, and the officer's observations. That includes cases involving prescription medication or THC.

The State doesn't have to prove you knew the child's age, that the child was harmed, or that the child was unrestrained. The child's presence in the vehicle is enough.

How Is It Different From a Regular DWI?

Issue	First-offense DWI (§49.04)	DWI with child passenger (§49.045)
Offense level	Class B misdemeanor; Class A if BAC is 0.15 or more	State jail felony
Jail or prison range	72 hours to 180 days in county jail (Class B)	180 days to 2 years in state jail
Maximum fine	$2,000 (Class B)	$10,000
Deferred adjudication	May be available (not if BAC is 0.15+ or CDL holder)	Not available
Ignition interlock on bond	Discretionary for a first offense	Generally mandatory
Felony record	No	Yes, with consequences for firearms, employment, and professional licenses

Since September 1, 2019, Texas judges have been allowed to grant deferred adjudication for many first-time DWIs. Article 42A.102 specifically excludes §49.045, however, along with DWI cases where the driver had a commercial license or a BAC of 0.15 or more.

Can it be enhanced further?

Yes. Under Penal Code §49.09(b), a DWI with child passenger becomes a third-degree felony if the person has two prior intoxication-related driving convictions, or one prior conviction for intoxication manslaughter. A third-degree felony carries 2 to 10 years in prison.

If a child is injured, the charges can become far more serious, such as intoxication assault (§49.07) or, tragically, intoxication manslaughter (§49.08), along with other possible offenses.

What Happens After the Arrest?

Bond and conditions

Because this is a felony, bond amounts are often higher than for a misdemeanor DWI, and the conditions are more restrictive. Under CCP art. 17.441, a magistrate must require that you install an ignition interlock device on the vehicle you own or drive most often, and that you not drive any vehicle without one. You must have it installed at your own expense within 30 days of release. The magistrate can waive this only by finding that the device "would not be in the best interest of justice." Learn more about how ignition interlock devices work.

Other common bond conditions in DFW include no alcohol, alcohol monitoring, and sometimes conditions related to contact with or transportation of children.

Grand jury and felony court

Felony charges must be presented to a grand jury. In Tarrant County, felony DWI cases are handled in the criminal district courts rather than the county criminal courts. The time between arrest and indictment gives your lawyer a chance to investigate, obtain the video, and sometimes present information to prosecutors before charging decisions are final.

The driver's license case

The child passenger charge doesn't change the administrative license process. If you refused or failed a breath or blood test, DPS will seek to suspend your license through the Administrative License Revocation (ALR) program. You generally have 15 days to request a hearing. See our guide: The 15-Day Clock: How to Request and Fight an ALR Hearing.

Will CPS Get Involved?

Often, yes, especially when the driver is the child's parent or caregiver.

Texas law requires that reports to law enforcement alleging abuse or neglect by a person responsible for a child's care be referred immediately to DFPS. Under Family Code §261.001, "neglect" includes an act or failure to act showing blatant disregard for the consequences that results in harm to the child or "creates an immediate danger to the child's physical health or safety." DFPS explains that its investigation is a civil matter focused on the child's welfare and is separate from the criminal case.

What that can mean for a DFW family:

• A CPS investigator may contact you, visit your home, or interview your children, often within days.
• You may be asked to sign a safety plan, which may include not driving the children or supervised contact.
• A CPS finding can be used in a divorce or custody case, and the other parent may seek temporary orders limiting your possession or requiring you not to drink during visits.

Be careful what you say to a CPS investigator. Statements made in the CPS case can be shared with law enforcement and used in the criminal case. Talk to your criminal defense lawyer before any CPS interview, and coordinate with your family law counsel if custody is at issue.

How Are DWI With Child Passenger Cases Defended?

Every case is different, but the defenses usually focus on the same core questions as any DWI, plus the child passenger element.

Challenging the stop and arrest

• Was the stop lawful? The officer needs reasonable suspicion of a traffic violation or crime. Weaving within a lane, for example, isn't always enough. If the stop was unlawful, the evidence may be suppressed.
• Was there probable cause to arrest? Officers often rely on field sobriety tests, which can be affected by fatigue, nerves, medical conditions, footwear, weather, and road surface. They're also hard to perform with a frightened child watching.

Challenging intoxication evidence

• Breath tests: maintenance records, the 15-minute observation period, and operator certification.
• Blood tests: the warrant, the chain of custody, lab procedures, retrograde extrapolation, and whether a "no-refusal" warrant was properly obtained. See no-refusal DWI in Texas.
• Drug and medication cases: the State must prove loss of normal use of faculties. A positive test for a substance alone doesn't prove intoxication.

Challenging the child passenger element

• Was the passenger actually younger than 15? The State must prove the child's age.
• Was the person charged actually operating the vehicle?
• Did the stop happen in a public place?

Negotiating the charge

Depending on the evidence and your history, the defense may negotiate a reduction from §49.045 to a misdemeanor DWI, which can open the door to deferred adjudication or other alternatives. Some defendants may be eligible for specialty or treatment-focused programs. For example, see Tarrant County's misdemeanor DWI court program, though eligibility depends on the final charge. Early action often matters, such as voluntary alcohol evaluations, counseling, and a clean interlock record.

What Are the Long-Term Consequences?

A state jail felony conviction can affect your life well beyond the sentence:

• Firearms: Federal law generally prohibits people with felony convictions from possessing firearms. See DWI and firearms in Texas.
• Employment and licenses: Nurses, teachers, CDL holders, and many licensed professionals face reporting obligations and discipline.
• Record sealing: Texas DWI nondisclosure options are largely limited to misdemeanor DWIs, so a felony conviction generally can't be sealed that way.
• Custody: A conviction can be powerful evidence in a custody dispute.
• Costs: The fines, fees, interlock costs, and insurance increases add up quickly. See the real costs of a DWI in Texas.

What to Do Right Now

1. Don't discuss the facts with police, CPS, or anyone else before talking to a lawyer.
2. Request your ALR hearing within 15 days, or have your attorney do it.
3. Comply with every bond condition, especially the interlock deadline.
4. Write down everything you remember: where you were, what you ate and drank and when, any medical conditions, and where the stop happened.
5. Identify witnesses and receipts, such as restaurant or bar tabs, that show the timeline.
6. Talk to a DWI defense lawyer before your first court date and before any CPS interview.

Frequently Asked Questions

Is DWI with a child passenger a felony on the first offense in Texas?

Yes. Under Penal Code §49.045, it's a state jail felony even if you have no prior record, the child wasn't hurt, and your BAC was just above 0.08.

How old does the child have to be?

The passenger must be younger than 15. A 15- or 16-year-old passenger doesn't make the offense §49.045, though the case would still be prosecuted as a regular DWI.

Can I get deferred adjudication for DWI with a child passenger?

No. Code of Criminal Procedure art. 42A.102 specifically bars deferred adjudication for §49.045. Regular (straight) probation may be possible, and sometimes the charge can be negotiated down to a misdemeanor DWI, where deferred adjudication may be available.

Will I have to install an ignition interlock?

Usually, yes. Under CCP art. 17.441, a magistrate must require an interlock as a bond condition for a §49.045 charge, unless the magistrate finds it wouldn't be in the best interest of justice. It must be installed within 30 days of release.

Can I be charged with more than one count if there were several kids in the car?

Prosecutors may file a separate count for each child under 15 in the vehicle. How those counts are resolved depends on the facts and negotiations.

Will CPS take my children?

Removal is not automatic. In many DWI cases, CPS uses safety plans rather than removal. But CPS involvement is common, and your statements matter. Get legal advice before speaking with an investigator.

Does the child passenger charge affect my license suspension?

The ALR license process works the same as in any DWI. You have 15 days to request a hearing after a breath test refusal or failure. A conviction can carry its own license consequences, too.

Talk to a Fort Worth DWI Defense Lawyer

A DWI with a child passenger charge puts your record, your license, and your family at risk all at once. HLAW's Fort Worth DWI attorneys defend these cases across the Dallas-Fort Worth area, coordinating the criminal case, the ALR hearing, and any CPS or custody issues. Call (817) 993-9249 or contact us online for a free, confidential consultation.

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This article is for general informational purposes only and is not legal advice. Reading it does not create an attorney-client relationship. Penalties and procedures depend on the facts, your criminal history, and the court. Consult a licensed Texas attorney about your situation.

 

When it comes to divorce, Texas follows a "no-fault" policy but also allows for several "fault-based" grounds. Understanding these distinctions is essential for anyone considering a divorce in the Lone Star State. In this blog post, we'll explore the different types of grounds for divorce in Texas and what they mean for your case.

No-Fault Divorce in Texas

The most common ground for divorce in Texas is "insupportability," often referred to as a no-fault divorce. This means that the marriage has become insupportable due to conflict or discord, making reconciliation impossible. Neither spouse is blamed for the breakdown of the marriage. No-fault divorces are generally quicker and less contentious, as they do not require proving misconduct by either party.

Fault-Based Divorce Grounds in Texas

While no-fault divorce is common, Texas law allows for several fault-based grounds. These grounds can influence issues such as property division and spousal support. The fault-based grounds include:

1. Adultery - Adultery occurs when one spouse engages in a romantic or sexual relationship with someone outside the marriage. Evidence of adultery can significantly impact the division of marital property, as courts may award a larger share to the wronged spouse.
2. Cruelty - Cruelty refers to one spouse treating the other in a manner that makes living together insufferable. This can include physical abuse, emotional abuse, or other forms of mistreatment.
3. Abandonment - Abandonment occurs when one spouse leaves the other with the intent to abandon and remains away for at least one year without consent.
4. Conviction of a Felony - If one spouse is convicted of a felony and imprisoned for at least one year, the other spouse can file for divorce on these grounds. However, this ground is not applicable if the convicted spouse was convicted based on the other spouse’s testimony.
5. Living Apart - A couple can file for divorce if they have lived apart for at least three years without cohabitation.
6. Confinement in a Mental Institution - If one spouse has been confined to a mental institution for at least three years with little or no likelihood of recovery, the other spouse can file for divorce.

Why Grounds for Divorce Matter

The grounds for divorce in Texas can impact the following:

• Property Division: Fault-based grounds like adultery or cruelty may lead to a more favorable division of marital property for the wronged spouse.
• Spousal Support: Fault-based divorces can also influence whether spousal maintenance is awarded and in what amount.
• Custody Decisions: While courts prioritize the best interests of the child, fault-based issues such as cruelty may influence custody arrangements.

Filing for Divorce in Texas

Whether filing for a no-fault or fault-based divorce, it’s essential to meet Texas’ residency requirements. One spouse must have lived in Texas for at least six months and in the county where the divorce is filed for at least 90 days.

Additionally, collecting evidence is crucial in fault-based cases. For example, proving adultery may require text messages, emails, or witness testimony, while cruelty may need documentation of injuries or other forms of abuse.

Conclusion

Understanding the grounds for divorce in Texas can help you make informed decisions about your case. While no-fault divorces are often simpler, fault-based divorces may provide a legal advantage in certain circumstances. If you’re considering a divorce, consult with a qualified family law attorney to determine the best approach for your situation.

Navigating divorce can be challenging, but knowing your options is the first step toward a fresh start.

Contact HLAW today for a free case evaluation and consultation.

Which Parent Gets Custody? The Standard Possession Order for Child Custody in Texas

When parents in Texas divorce or separate, one of the most important issues they face is child custody. Texas law recognizes two types of custody: physical custody, which refers to where the child lives, and legal custody, which refers to the right to make decisions about the child's upbringing. In cases where parents cannot agree on custody arrangements, the court may order a standard possession order.

A standard possession order is a court-ordered schedule that determines when each parent will have physical custody of the child. The order is designed to provide regular and predictable time for both parents to spend with the child. In Texas, the standard possession order is governed by the Texas Family Code, and it provides a default schedule that can be modified by agreement of the parties or by the court if certain circumstances exist.

Under the standard possession order, for parents residing within 50 miles of each other, the non-custodial parent (referred to as the "possessory conservator" in Texas) has the right to possession of the child on the first, third, and fifth weekends of each month, starting at the time school is dismissed on Friday and ending at the time school resumes on Monday. In addition, the possessory conservator has the right to possession on mid-week during the school year from the time school is dismissed on Thursday until the time school resumes on Friday morning.

The standard possession order, for parents residing within 50 miles of each other, also provides for the possessory conservator to have the child for 30 days in the summer, which can be broken up into two periods of at least seven days each. The order also provides for the possessory conservator to have the child on alternating holidays, such as Thanksgiving, Christmas, and spring break. The exact dates and times for each holiday are specified in the order.

Printable Standard Possession Order for 2024. CLICK HERE

Does the SPO Apply if the Parents Live Too Far Away?

In cases where the parent lives more than 50 miles but less 100 miles apart, the non-custodial parent (referred to as the "possessory conservator" in Texas) has the right to possession of the child on the first, third, and fifth weekends of each month, starting at 6:00 pm on Friday and ending at 6:00 pm on Sunday. In addition, the possessory conservator has the right to possession on Thursdays during the school year from 6:00 pm to 8:00 pm.

In cases where the parents live more than 100 miles apart, the standard possession order provides for additional periods of possession to ensure that the non-custodial parent has meaningful time with the child. For example, the non-custodial parent may have the right to possession on one weekend per month instead of the first, third, and fifth weekends. You
should consult with your family law attorney to determine whether this distance consideration impacts your situation.

Can the Standard Possession Order be Modified?

It's worth noting that the standard possession order is just that - a default schedule that can be modified by agreement of the parties or by the court. Parents who are able to work together to create a schedule that works for their family may be able to deviate from the standard possession order. However, if the parties cannot agree, the court will likely order the standard possession order.

Overall, the standard possession order provides a predictable schedule for both parents to spend time with the child. While it may not work for every family, it is a useful starting point for parents who are unable to agree on a custody schedule.

An Experienced Divorce and Child Custody Lawyer Can Help Determine When Each Parent Has Possession of Their Child

Most of the time, it is best to contact an experienced family law attorney to help explain and establish each of these possession schedules, including any customizations or unique provisions the court finds to be in the best interest of your child. You are often not limited to the standard and expanded standard schedule above–but you may need an experienced attorney to fight for you to have more time with your child. Let our experienced family law attorneys assist you in discussing this schedule with the other parent and the court. Contact BHW Family Law at (817) 993-9249 for a free consultation of your family law matter.