Abuse of a law in Texas

Public Intoxication. It doesn’t mean what you think it does. It doesn’t even mean what most police officers think it does. It is probably the most misused and abused laws in the state of Texas.

On another blog somewhere (don’t recall where) on a discussion of Texas law a commenter mentioned that you can be arrested for being drunk in a bar. In a way this is true. In practice it is even more true. However, it generally isn’t legal.

So here it is. Section 49.02 of the Texas Penal Code.

Sec. 49.02. PUBLIC INTOXICATION. (a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

(a-1) For the purposes of this section, a premises licensed or permitted under the Alcoholic Beverage Code is a public place.

(b) It is a defense to prosecution under this section that the alcohol or other substance was administered for therapeutic purposes and as a part of the person’s professional medical treatment by a licensed physician.

(c) Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor.

(d) An offense under this section is not a lesser included offense under Section 49.04.

(e) An offense under this section committed by a person younger than 21 years of age is punishable in the same manner as if the minor committed an offense to which Section 106.071, Alcoholic Beverage Code, applies.

Ok this bit “For the purposes of this section, a premises licensed or permitted under the Alcoholic Beverage Code is a public place.” pretty well means any place that can sell alcohol. It just specifies that bars are included in “public”.

The important bit is this:

A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

Read that. Read it again. One more time. All of Texas law is written pretty much the same. “A person commits an offense if ….“. Everything after the if is what I was taught in the police academy as “elements of the offense”. A person has to meet all of the elements of an offense to be deemed “committing” the offense.

Police in Texas tend to ignore the bold part. The bold part is actually the more important part of the law.

The intent of the Public Intoxication law in Texas is NOT to outlaw being drunk in a public place. The intent is to protect the drunk and those around the drunk. Simply put, if you are not posing a danger to yourself or others, YOU ARE NOT COMMITTING PUBLIC INTOXICATION.

If you are not exhibiting behavior that could lead a police officer to believe that you pose a danger to yourself or others … YOU ARE NOT BREAKING THE LAW!

If you are arrested for Public Intoxication in Texas the one question you should be asking the arresting officer in court is, “What about my behavior that day/night led you to believe I posed a danger to myself or others?”

This does not get near enough attention. Calls/letters could even be written to your local police chief or district attorney pointing this out and asking why so many unlawful arrests are allowed under this statute.

One last note: No, I did not get arrested for Public Intoxication. This is just a pet peeve of mine.

source: Texas Statutes website.