Honorable George W. Fryer Opinion No. c-669 

County Attorney 

Freestone County 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 Prooedare and related 

Dear Mr. Fryer: questions. 

You have asked the opinion of this office as to 

whether a district court has jurisdlotlon to convict a person of the misdemeanor offense of driving while intoxicated 

In a case where the defend8nt 1s charged with the felony 

offense of driving while intoxicated under 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 

expressly provides as 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 intoxicated may be used for purposes of 

enhancement under 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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Honorable George W. Fryer, page 2 (C-669 ) 

"Would double jeopardy lie wherein a 

person goes to trial under a felony lndictment as provided in Art. 802b; the 

State falls to prove the first offense as 

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 District Court 

does not have the jurisdiction of the seoond offense, be refiled in the County Court 

as a misdemeanor DWI?' 

The misdemeanor offense of DWI Is an offense included In 

the allegation of the Indictment alleging the felony offense 

of DWI. McKenzie v. State, 263 S.W.2d, 562, (Tex.Crlm.1954). 

If the Derendant may properly be found guilty of an offense 

lower In grade than that for which he is prosecuted, the 

acquittal of such greater offense will 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 

McKenzie v. State, supra, the court held that, by virtue of 

ti 1 694 the misdemeanor offense of DWI Is Included in 

a: izdTctme&i charging 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 

determinative of this question. 

SUMMARY 

A District Court has jurlsdlctlon of the 

misdemeanor offense of driving while intoxicated where the Defendant is charged with 

the felony offense of driving while lntoxiC8ted and the State falls.to 'prove the alleged prior conviction. A conviction of 

driving while Intoxicated may be used. for 

enhancement purposes, In the appropriate 

airaumstances, under Articles 62 and 63 of 

Vernon's Penal Code. The necessary proof 

of enhancement under Article 61 of 8 prior 

driving while Intoxicated convlatlon Is the 

proof required by Article 802b, Vernon*s 

Penal Code, which defines DWI, second 

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. 

. 

Honorable George W. Fryer, page 3 (C-669 1 

offense; therefore a prior conviction of 

misdemeanor driving while Intoxicated may 

not be used for purposes of enhancement 

under Article 61, Vernon's Penal Code. 

The misdemeanor offense of driving while 

intoxicated is an offense Included In the 

allegation of the Indictment alleging the 

felony offense of driving while lntoxicated, and acquittal of the charge of 

driving while lntoxiaated, second offense, 

would bar a subsequent prosecution for 

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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