THE ATTORNXCY GENERAL 

OP ESAS 

August 28. 1987 

Bonorable Charles Chapman 

Criminal District Attorney 

Hays County Courthouse, Room 208 

San Marcos, Texas 78666 

opinion No. Jn-777 

Re: Whether a loss of "physical 

or mental faculties" under artize 67011-1, V.T.C.S.. represents moTe than one distinct 

offense for purposes of a criminal complaint 

Dear Mr. Chapman: 

You ask 

Under the amended DWI statute, does loss of 

physical s mental faculties represent two (2) 

separate and distinct offenses which must necessarily be pled in alternative count . . . or 

does loss of "physical AND mental faculties" 

represent one (1) offense which can be pled in a 

single count? 

Article 67011-l. V.T.C.S., provides: 

(a) In this article: 

. . . . 

(2) 'Intoxicated' meansi 

(A) not having the normal usa of mental or 

physical faculties by reason of the introduction 

of alcohol, a controlled substance, a drug, or a 

combination of two or more of those substances 

into the body: or 

(B) having an alcohol concentration of 0.10 or 

more. 

. . . . 

(b) A person commits an offense if the person 
Elonorable Charles Chapman - Page 2 (JM-777) 

is intoxicated while driving or operating a motor 

vehicle in a public place. 

In Forte v. State. 707 S.W.Zd 89 (Tex. Grim. App. 1986). aff'd. 

722 S.W.2d 219 (Tex. App. - Fort Worth, 1987). following passage of 

the current statute the court said: 

In 1983, the Legislature amended the law and 

provided that driving while intoxicated was an 

offense if a defendant drove or operated a motor 

vehicle in a public place while intoxicated. 

V.A.C.S., art. 67011-l(b) (Supp. 1984). Additionally, the definition of 'intoxication' was broadened to include: 

(A) not having the normal use of mental or 

physical faculties by reason of the introduction of alcohol, a controlled substance, a 

drug, or a combination of two or more of those 

substances into the body; or 

(B) having an alcohol concentration of 

0.10 percent or more. 

V.A.C.S., art. 6701&-l(a)(2) (Supp. 1984). 

(Footnote omitted). 

This extension of the definition of 'intoxication' replaced the former singular definition with 

two alternative definitions. One of those 

alternatives created a new definition of 'intoxication' based'upon alcohol concentration of 0.10% 

in the body. (Emphasis added). 

707 S.W.2d at 94. 

In Russell v. State, 710 S.W.2d 662 (Tex. App. - Austin 1986. 

pet. ref'd) the court held that under the statutory definition of 

intoxication, an element of the offense prohibited under article 

67011-1, the prohibited act may be committed in one of two different 

ways, stating: 

In a prosecution under art. 67011-l. the 

prohibited act is being intoxicated while-driving. 

Under the statutory definition of 'intoxicated' 

quoted above, a person may commit this prohibited 

act in one of two distinct ways: (1) by driving 

while not having the normal use of his mental or 

physical faculties by reason of the introduction 

p. 3660 
Eonorable Charles Chapman - Page 3 (J-g-777) 

of alcohol or a controlled substance, or (2) by 

driving while having an alcohol concentration of 

0.10 or more. (Emphasis added). 

710 S.W.2d at 663-64. 

In Scherlie v. State, 715 S.W.2d 653 (Tex. Grim. App. 1986) the 

Court of Criminal Appeals, quoting from the Court of Appeals, stated 

that: 

The new definition of 'intoxicated' in art. 

67011-l(a)(2)(B) . . . an alcohol concentration of 

O.lOE constitutes intoxication standing alone. It 

is a separate, independent. additional way in 

which the crime of driving while intoxicated may 

be committed. (Emphasis added). 

It is our opinion that the courts will hold "not having the 

normal use of mental or physical faculties by reason of the introduction of alcohol . . ." while operating a motor vehicle in a public 

place to be a single offense. We believe this conclusion to be 

consistent with the general rule set forth in Jurek v. State, 522 

S.W.2d 934, 941 (Tex Grim. App. 1975). 

Where several ways an offense may be committed 

are set forth in a statute and are embraced in the 

same definition, are punishable in the same 

manner, and are not repugnant to each other. they 

are not distinct offenses, and may be charged in 

one indictment. Nicholas v. State, 23 Tex.App. 

317, 5 S.W. 239; Ferguson v. State, 80 Tex.Cr.R. 

383, 189 S.W. 271; Todd v. State, 89 Tex.Cr.R. 99, 

229 S.W. 515. 

The loss of physical or mental faculties embraced in the same 

definition in article 67011-l(a)(2)(A) are punishable in the same 

manner and are not repugnant to each other since a person could have 

the loss of both mental and physical faculties by virtue of 

intoxication. The authorities cited herein make it clear that an 

alcohol concentration of 0.10% is a separate, independent, additional 

way in which the offense of driving while intoxicated may be 

committed. 

p. 3661 
Honorable Charles Chapman - Page 4 (34-777) 

SUMMARY 

"Not having the normal use of mental or 

physical faculties by the reason of the 

introduction of alcohol" while operating a motor 

vehicle in a public place is a single offense 

under article 67011-l. V.T.C.S., and can be pled 

in one count in thecharging instrument. 

Very I truly yourA) 

JIM MATTOX 

Attorney General of Texas 

HARY KELLER 

Executive Assistant Attorney General 

JDDGE ZOLLIE STEAXLIZY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

. . 

p. 3662