HonorableGeorgeW. Fryer Opinion No. c-669

County Attorney FreestoneCounty Re: Whether the 2nd offense Fairfield,Texas of DWI (a felony) Is an offense consisting of degrees as provided in Articles 37.08 and 37.09 of the 1966 Code of Criminal Prooedareand related Dear Mr. Fryer: questions.

You have asked the opinion of this office as to whether a district court has jurisdlotlonto convict a person of the misdemeanoroffense of driving while intoxicated In a case where the defend8nt 1s chargedwith the felony offense of drivingwhile intoxicatedunder Article 802b, Vernonts Penal Code, and the State fails to prove the alleged prior convlatlon. In the aase of McKenzie v. State-, 263 S.W.2d,562 (Tex.Crim.1954), it was held that a district court does have jurlsdlotlon under such clrcumstanaes. In addition,Article 4.06 of the Code of Criminal Procedure expresslyprovidesas follows:

"Upon the trial of a felony case, the court shall hear and determine the case as to any grade of offense Included in the indictment,

whether the proof shows
8 felony or 8 misdemeanor."

Your next inquiry is whether or not a conviction for driving while intoxicatedmay be used for purposes of enhancementunder Artlales 61., 62, and 63 of Vernon's Penal Code. The answer to this question, insofar as Articles 62 and 63 are ooncerned,Is yes, provided the other conditions set forth in these Article8 exist. See McKee v. State, 351 S.W.2d 246 (Tex.Crlm.1961).With respect t A tl 1 61 the answer is no. The proof required for enh8n~em&tcu~dergthls Article would be the same proof required for a conviction under Artidle 802b of the Penal Code, the statute whiah defines f%U second offense and makes It a separate and felony offense.

Your next question is:

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"Woulddouble jeopardy lie wherein a person goes to trial under a felony lndictmentas provided in Art. 802b; the State falls to prove the first offenseas alleged and the primary offense,or second offense, is tried in the Mstrict Court and the person is acquitted. Could the second offense,assuming the DistrictCourt does not have the jurisdictionof the seoond offense,be refiled in the County Court as a misdemeanorDWI?'
The misdemeanoroffense of DWI Is an offense included In the allegationof the Indictmentalleging the felony offense of DWI. McKenziev. State, 263 S.W.2d, 562, (Tex.Crlm.1954). If the Derendantmay properlybe found guilty of an offense lower In grade than that for which he is prosecuted,the acquittal of such greater offensewill bar a subsequent trial for the lower grade offense. See Irvin v..State 7, Tex. Crim Rep 78 (1879); Grisham v. State

.

Finally,you ask whether the felony offense of.DWI is an offense oonsistlng of degrees as provided In Artloles 37.08 and 37.09 of the Code of Criminal Procedure. In McKenziev. State, supra, the court held that, by virtue of ti 1 694 the misdemeanoroffense of DWI Is Included in a: izdTctme&icharging the felony offense of DWI. Since Artlole 694 was brought forward as Article 37.08 without change,you are hereby advised that In our opinion the holding of the court In ~McKenzle v. State, supra, is at111 determinativeof this question.

SUMMARY

A District Court has jurlsdlctlon of the misdemeanoroffense of driving while intoxicated where the Defendant is chargedwith the felony offense of driving while lntoxiC8ted and the State falls.to 'prove the alleged prior conviction. A convictionof driving while Intoxicatedmay be used. for enhancement

purposes, In the appropriate airaumstances,

under Articles 62 and 63 of Vernon's Penal Code. The necessaryproof of enhancementunder Article 61 of 8 prior driving while IntoxicatedconvlatlonIs the proof requiredby Article 802b, Vernon*s Penal Code, which defines DWI, second

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Honorable GeorgeW. Fryer, page 3 (C-669 1

offense; thereforea prior convictionof misdemeanordriving while Intoxicatedmay not be used for purposes of enhancement under Article 61, Vernon's Penal Code. The misdemeanoroffense of driving while intoxicatedis an offense Included In the allegationof the Indictmentalleging the felony offense of driving while lntoxicated, and acquittal of the charge of driving while lntoxiaated,second offense, would bar a subsequentprosecutionfor driving while Intoxicated,first offense.

Yours very truly,

WAGGONER CARR Attorney General of Texas

REO/er

APPROVED:

OPINION COMMITTEE w. 0. Shultz, Chairman Mlltbn Richardson Lonnle F. Zwlener Pat Bailey Robert Flowers

APPROVEDFORTRE ATTORNEY GENERAL BY: T. B. Wright

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