The Attorney General of Texas 

June 23, 1980 

Honorable Maurice S. Pipkin 

Executive Director 

State Commission on Judicial Conduct 

P. 0. Rex 12266 

Austin, Texas 

Dear Mr. Pipkim 

Opinion No. m-197 

Re: Whether “public intoxication” 

is a lesser included offense of 

“driving while intoxicated.” 

You ask if the offense of “public intoxication” is a lesser included 

offense of “driving while intoxicated.” 

In 1973, the Texas Code of Criminal Procedure was amended to 

estabDsh a new scheme for determining and dealing with “lesser included 

offensesn Article 37.08’thereof now reads: 

In the prosecution for an offense with lesser included 

offenses, the jury may find the defendant not guilty 

of the greater offense, but guilty of any lesser 

included offense. 

Article 37.09 of the Code of Criminal Procedure states: 

An offense is a lesser included offense if: 

a, it is established by proof of the same or less 

than all the facts required to establish the 

commission of the offense charged; 

Article 37.09 of the Code defines lesser included offenses in terms of 

the relationship between the lesser offense and the “offense charged.lt If the 

facts necessary to be proven in a particular case in order to establish the 

“offense charged” would also prove the lesser offense, the lesser offense is 

an %cluded” offense in that case, whether or not in a different case the 

greater offense could be proved on facts that would not include the lesser 

offense. Campbell v. State, 571 S.W.%d 161 (Tex. Crim. App. 1976); &el v. 

(Tex.Crim. App. 1976% 

:. Grim. App. 1976); Day v. State. 532 SW.: 

For that reason, the determm 

~~~~2d 

ation of whether a 

particular offense bears such a relationship to the offense charged must be 

made co a ca!~ by case basis. Campbell v. State, supra. 

P. 636 
Honorable Maurice S. Pipkin - Page Two (Mw-197 1 

Thus, unless we can say as a matter of law that it would never be necessary in a 

particular case to prove facts establishing the offense of “public intoxication” in order to 

also prove the offense of %iving while intoxicated.,” we cannot say that under no 

circumstances would “public intoxication” be a lesser included offense of “driving while 

intoxicated.” See Jones v. State, 586 S.W.2d 542 (Tex. Crim. App. 1979). ~Cf. Ahearn v. 

State, 588 S.Wm 327 (Tex. Crim. App. 1979). In our opinion “public intoxication” may 

under certain circumstances be a lesser included offense where the offense charged is 

“driving while intoxicated.” 

The offense of “public intoxication” is committed by a person if (1) he appears in a 

public place (2) under the influence of alcohol or any other substance, (3) to the degree he 

may endanger himself or another. Penal Code S 42.08. 

An essential element of the proof necessary to convict under the foregoiq penal 

provision is a showing that the defendant was intoxicated to the extent that he might 

endanger himself or another. Dickey v. State, 652 S.W.Bd 467 (Tex. Crhn. App. 1977). See 

also Loden v. State, 561 S.W.2d 2 (Tex. Crim. App. 1978). It has been sugested that % 

“endanger” element of proof is not required in prosecutions for %&iv& while intoxicated,” 

and that “public intoxication” cannot,’ therefore, be a lesser included offense of that 

offense. However, an examination of holdings of the Court of Criminal Appeals compels a 

different conch&on. 

Article 67Ol&l, V.T.C.S., provides: 

Any person who drives or operates an automobile or any motor 

vehicle ~upon any public road or highway in this State, . . . or upon 

any street or alley within the limits of an incorporated city, town 

or village, while such person is intoxicated or under the influence 

of intoxicating liquor, shall be guilty of a misdemeanor. d.. 

It is readily seen that the foregoing “driving while intoxicated” statute does not mention 

the endangerment of persons, and in Stewart v. State, 299 S.W. 646 (Tex. Crim. App. 19271, 

the court observed that the law does not withhold its sanction until an intoxicated 

individual on the highway kills somebody OF wrecks his own or some other car: 

If he is drunk, or is under the influence of intoxicants, he is 

forbidden to drive an automobile on a public highway in this state, 

end the law is violated when he does so drive his oar, as much as if 

he keeps the middle of the road as if he wrecks a dozen cars. 

Id at 647. Moreover, in- 165 S-W.2 i 904 (Tex. Crim. App. 19421, the court 

zd of ?lrivlng while intoxicated”: 

4 

I 

It must be borne in mind that the 

two elements: First, 

automobile upon a public highway 

is composed chiefly of 

secon4 drivhg an 

such condition. 

p. 637 
Honorable Maurice S. Pipkin - Page Three (Mw-197 1 

Id at 905. - 

But those cases address cfiIy the non-necessity of showing that harm resulted from 

danger (Stewart, s ra), end the necessity that the state prove both intoxication and 

driving (Snider, supra 3- . Neither of them holds that “driving while intoxicated” is not per 

dangerous to persons, If it Is, the need for proof thereof is obviated because “driving 

while intoxicated” would endanger persons as a matter of law. Proof of the. two chief 

elements would establish a thin-k danger. 

In Day v. State, w the Court of Criminal Appeals decided that “criminal 

trespass” was a lesser included offense in a case where the offense charged was 

“burglary,” although the criminal trespass statute (but not the burglary statute) expressly 

required for conviction thereunder proof that the defendant “had notice that entry was 

forbidden, or received notice to depart.” See Penal Code SS 30.02, 30.05. The state 

argued that enotice” was an additional elemZiZ not necessary to prove In ‘estabIIshlng a 

burg&y, and that criminal treqass could, therefore, never be a lesser In&&d offen& 

of burglary. But the court said: 

[Iln a situation such as that presented in the present case where 

proof shows that the accused entered a building not then open to 

the public, the hotice’ requIremerit would be satisfied by proof of 

entry into the buIIdIng since *notice’ can be establfshed by a 

Tenfen& or other enclosure obviously desIgned to exclude I 

. . . . Therefore, ths elements of criminal trespass, 

including ‘notice,’ could be established by proof of the same facts 

necessary to prove~the offense of burglary. The proof of additional 

facts would not be necessary, and the requirements of 37.09(l) . . . 

would be satisfied. 

(Emphasis added). Day v. State, B at 306. 

Perhaps the evil that the “driving while intoxicated” statute intends to correct is so 

obvious that courts seldom need to discuss it, but it has been discussed on occaslor~ In 

Johnson v. State, 147 S.W.2d 8ll (Tex. Crim. App. 19411, the court, speaking of the Vrunk 

driving” law, said, “The object and purpose of the law is to prevent men, women, and 

children from being wounded and maimed by persons driving automobIles while in a state 

of intoxication.” 147 S.W.2d 614. In Blackburn v. State, 204 S.W.Bd 619 (Tex. Crim. App. 

1947), it was said, “The purpose of the law is to protect people against drunk drivers. . . . 

Id at 620. - 

In our opinion, the elements of “public intoxication,” including intoxication “to the 

degree he may endanger himself or others,” could be established in some cases by proof of 

the same facts necessary to prove the offense of “driving while intoxicated” Proof of 

additional facts would not be necessary. 

The soundness of this conclusion is illustrated by the case of Dickey v. State, S~IPFB, 

decided in 1977. Dickey was a.probationer who was discovered drunk and asleep in the 

p. 638 
Honorable Maurice S. Pipkin - Page Four (&S+lgj’) 

front seat of a car outside a lounge in the middle of the night. His probation was revoked 

on grounds he had committed the offense of “public intoxication.” On appeal he argued 

that the evidence was insufficient to show that he was a danger to himself or anyone else. 

The court rejected that argument, concluding that potential danger was enough: 

In the Instant case appellant rendered himself subject to potential 

danger by becoming so intoxicated that he fell asleep in a car in 

front of a lounge in the middle of the night. The State points out in 

its brief that appellant was ‘vulnerable to an assortment of 

difficulties.’ It is also possible that appellant could have awakened 

and taken it upon himself to drive himself and his companion home, 

which would have constituted an even clearer danger. (Emphasis 

added). && at 466. 

It is apparent from the foregoir&I that had Dickey actually attempted to drive the car and 

been oharged with %drivlng while intoxicated” rather than “public intoxication,” the latter 

offense would nevertheless have been a “lesser included offense” of the one charged. See 

BrItton v. State, 576 S.W.2d 685 (Tex. Crim. App. 1979); See Rx arte Ross 522 S.W.2dm 

‘(Tex. Crim. App. 1975); Cf. m 597 --5---+ P.2d 478 5th CU. 1979). 

- 

You next esk whether the public interest underlying article 67Ol&l, V.T.C.S, would 

be served If judgea were permitted to knowingly dispose of a driving while intoxicated 

case in which public intoxication Is not a lesser .included offense In a manner which does 

not result In the administrative or penal sanctions imposed by sections 24 and 25 of article 

6667b, V.T.C.S., and article 67OEl, V.T.C.S. This question on the public interest raises 

policy rather than legal questions and accordingly cannot be addressed In the opinion 

Pro== 

SUMMARY 

The offense of “public intoxication” may sometimes be a lesser 

Included offense when U%ng while intoxicated” is the offense 

charged. 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General 

P. 639 
Honorable Maurice S. PipkIn - Page Five (m-197) 

Prepared by Bruce Youngblood 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

Gerald Carruth 

Susan Garrison 

Rick Gilpin 

Bruce Youngblood 

P. 640