A second-degree felony applies unless the specific conditions listed above elevate it to a first-degree felony. The criminal case belongs to the State. Your family’s civil claim, on the other hand, is your own. That is probably the most important point that many families don’t hear immediately after a deadly car wreck. The prosecutor will likely talk with you about the State’s criminal case. However, no one is obligated to tell you how to pursue your family’s civil claim. This article does exactly that.
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What Is Intoxication Manslaughter Under Texas Law?
The elements that prosecutors must prove
Section 49.08(a)(1) of the Texas Penal Code divides into three general areas:
- the defendant operated a motor vehicle on a highway or street in this state, operated an aircraft, watercraft, or amusement park ride, or put together a mobile amusement ride;
- at the time he acted, the actor was intoxicated; and
- by reason of his intoxication, the actor caused the death of another person by accident or mistake.
It is usually the third area that determines whether these cases win and lose. While a DUI arrest, failing a roadside field sobriety test, or achieving a 0.08 BAC doesn’t stand alone establish that the defendant’s intoxication caused the death (as explained below), a jury needs to determine there is enough evidence connecting the impairment of the defendant with the fatal outcome. In contrast, if an impaired driver were stopped at a red light and struck by a speeding semi-truck killing a passenger inside, then there would not be enough evidence showing the death was caused by the driver’s impairment. Defense attorneys scrutinize the connection established by prosecutors.
What does Texas consider being “intoxicated”?
Texas law defines two types of being “intoxicated.” Either type can qualify as establishing that the defendant was intoxicated.
- The individual had not used normal mental or physical abilities to operate a motor vehicle because of alcohol, drugs, controlled substances, dangerous drugs, combinations of such substances, or other substances introduced into the body;
- The individual had a blood alcohol concentration (“BAC”) level of .08% or higher.
There is nothing in the definition requiring the presence of alcohol. Prescription medications count toward qualifying as “intoxicated,” as do marijuana, opioids, and any number of prescription medications combined with two beers.
Does the state have to prove intent or recklessness?
No. According to section 49.11 of the Penal Code, “proof of a culpable mental State is not required for an offense under Chapter 49.” This represents an important distinction from regular manslaughter charges brought under Section 19.04, which requires proof of reckless conduct. Practically speaking, it means that you might hear a defense attorney argue that the driver had no intention of causing such an event to occur.
However, lack of intent cannot preclude an intoxication manslaughter charge since Chapter 49 does not allow for consideration of a culpable mental state. Rather than proving intent or reckless conduct, the state must still prove operation, intoxication, death, and causation beyond a reasonable doubt.
Intoxication Manslaughter Compared With Related Texas Offenses
| Offense | Harm required | Mental state required | General offense level |
| DWI, Section 49.04 | None | None, Chapter 49 | Usually a Class B misdemeanor, subject to statutory enhancements and separate related offenses |
| Intoxication assault, Section 49.07 | Serious bodily injury | None, Chapter 49 | Third degree felony, enhanced in some cases |
| Intoxication manslaughter, Section 49.08 | Death | None, Chapter 49 | Second degree felony, first degree in limited cases |
| Manslaughter, Section 19.04 | Death | Recklessness | Second degree felony |
| Criminally negligent homicide, Section 19.05 | Death | Criminal negligence | State jail felony |
The pattern is worth noticing. All homicide offenses in Chapter 19 require that there be a specific culpable mental state. Virtually all intoxication offenses in Chapter 49 do not.
What Are the Penalties for Intoxication Manslaughter in Texas?
Standard second degree felony penalties
The standard penalty for DWI manslaughter in Texas is a second degree felony consisting of:
- 2 to 20 years in prison
- A fine of up to $10,000
Other penalties could result from a DWI manslaughter conviction. For example, depending upon the circumstances, your driver’s license could be suspended. When community supervision is legally available and granted, additional community service and/or jail time, treatment or education programs, ignition interlocks, and/or restitution orders could be ordered. The length and nature of these penalties will vary based upon the type of conviction entered, whether there were any enhancements applied to increase the potential punishment, and what decisions were made at the time of sentencing. In the case of an individual who receives community supervision for DWI manslaughter, the statute allows for a minimum of 240 hours and a maximum of 800 hours of community service.
When the charge can become a first degree felony
There is a long-standing enhancement that creates a First Degree Felony for intoxication manslaughter when the person killed was a Peace Officer, Judge, Firefighter, or Emergency Medical Services Personnel acting in the line-of-duty. This First Degree Felony has the possibility of being a sentence of 5 to 99 years or life in prison, with an optional fine of up to $10,000 dollars.
Senate Bill 745 (effective September 1, 2025) elevates Intoxication Manslaughter to a First Degree Felony when more than one person dies as a result of the same criminal act. Additionally, under House Bill 2017 (“Grayson’s Law”), Intoxication Manslaughter carries a stricter 10-year mandatory minimum prison sentence when the Defendant is unlawfully present in the United States. Both SB 745 and HB 2017 became effective on September 1, 2025.
Although the legislature enacted both bills during the same session, SB 745 explicitly amends Penal Code § 49.09(b-2), whereas HB 2017 targets sentencing minimums under the Code of Criminal Procedure. Additionally, due to separate ongoing federal litigation involving state border enforcement statutes, statutory citations should be verified prior to publication and prior to advising clients regarding HB 2017.
What happens when several people are killed?
Each death resulting from the accident can create its own count for DWI Manslaughter. Furthermore, under SB 745, which becomes effective on September 1, 2025, the “Multiple Death Enhancement” permits prosecutors to seek a First Degree Felony charge. Under Texas Law, in some limited instances where there are multiple victims, it is possible to receive consecutive sentences. However, the determination of whether sentences will be served consecutively or concurrently is dependent on various factors including the specific charges filed against you, how those charges are resolved through negotiation or at trial, and ultimately the discretion of the Judge at sentencing.
We make no promises regarding how sentences will run in advance of knowing all of the specific charges filed against you and all of the relevant facts surrounding your case.
Related Article(s)
What Happens If You Crash Your Car While Drunk in Texas?
What Happens After a Suspected Intoxication Manslaughter Crash?
Typically, the events unfold in this manner:
- Police investigation and evidence collection at the scene
- Blood or breath testing, usually pursuant to a search warrant
- Arrest, or a referral to the district attorney’s office
- Grand jury review and indictment
- Plea negotiations or trial
- Sentencing, including any restitution order
Families are typically not informed clearly about this point: You do not hire the district attorney; you cannot fire the district attorney; and you do not directly control the filing of charges or making of plea offers. Crime victims in Texas have significant rights, including receiving notice of their status as a victim, having consultation with the prosecutor and participating at appropriate stages of the prosecution process, and providing a victim impact statement. Those rights do NOT entitle families to have a say in the prosecution.
You do, however, have control over your civil claim.
Criminal Prosecution Versus a Civil Wrongful Death Claim
| Issue | Criminal case | Civil wrongful death claim |
| Who brings it | The State of Texas, through the district attorney | The surviving spouse, children, and parents |
| Purpose | Punish the offender | Compensate the family and hold responsible parties accountable |
| Burden of proof | Beyond a reasonable doubt | Generally a preponderance of the evidence for liability and compensatory damages. Exemplary damages require clear and convincing evidence. |
| Possible outcome | Prison, fine, supervision, restitution | Money damages |
Families may pursue a wrongful death case against the drunk driving perpetrator despite his criminal charges being dismissed (or reduced), due to the lower burden of proof that exists in civil cases. Additionally, families do not have to wait for a criminal verdict prior to conducting their own investigation and/or filing their civil claim. In fact, there is no requirement in Texas law for a criminal conviction prior to filing a wrongful death claim.
Coordination may be helpful since both investigations and claims will likely include some overlap in terms of the evidence obtained, witnesses interviewed, and testimonial evidence collected. However, generally speaking, promptness in completing a wrongful death investigation is critical; however, the timing of the filing and communication with counsel should be coordinated as appropriate depending upon the circumstances of each individual case.
Who Can Pursue a Wrongful Death Claim in Texas?
As stated previously, Texas Civil Practice and Remedies Code § 71.004 limits eligibility to only those individuals listed above. Therefore, siblings, grandparents, stepparents, and stepchildren do not fall into any of the categories established in section 71.004. There are exceptions; if an individual qualifies as a “surviving spouse” via either a valid marriage or an informal marriage that has been recognized by the courts as such, or if an individual has qualified as a parent by way of legal adoption, then he/she would be considered a parent. Furthermore, in many instances, a child adopted by someone could qualify as a “child”.
In addition to the wrongful death claim filed on behalf of the surviving Family members’ Pecuniary loss, the estate may file a Survival claim pursuant to Texas Civil Practice and Remedies Code § 71.021. The difference between wrongful death damages and Survival damages is relatively simple:
- Wrongful death damages: these damages are awarded to compensate the surviving Family members for the loss they sustained as a result of losing a loved one.
- Survival damages: these damages are awarded to the estate for what the deceased endured during the period between his/her injury and death.
What Compensation May Be Available to the Family?
Since every wrongful death claim varies greatly and no attorney can reasonably estimate what a specific claim might be worth until after reviewing all available evidence and determining which parties may be liable, along with assessing how much insurance is available to cover potential damages and losses, along with evaluating the defendant(s) potential liability for damages and losses.
Wrongful death damages
- Pecuniary losses, including lost financial support and household services
- Loss of inheritance
- Loss of companionship and society
- Mental anguish
Survival damages
- Medical expenses incurred before death
- Conscious physical pain and suffering
- Mental anguish experienced by the deceased
- Funeral and burial expenses when recoverable by the estate
Funeral and burial expenses are fully recoverable under Texas law. If paid directly by the estate, they are recovered through a Survival claim (CPRC § 71.021); if paid out-of-pocket by a surviving spouse, parent, or child, they are recovered as pecuniary losses through a Wrongful Death claim (CPRC § 71.004).
Additionally, Texas law allows families to seek exemplary (punitive) damages when liability is established by clear and convincing evidence of fraud, malice, or gross negligence. While Texas generally caps exemplary damages, Texas Civil Practice & Remedies Code § 41.008(c)(7) explicitly waives these statutory caps when the crash involves Intoxication Manslaughter (Texas Penal Code § 49.08).
Removing the statutory cap opens the door to full recovery, but it does not eliminate the legal burden of proof. Surviving family members must still independently prove gross negligence before a jury; simply proving that a fatal crash occurred is not enough on its own.
Lastly, families should note that any criminal fines assessed against the driver during prosecution go directly to the State of Texas, not to the victim’s family. Civil claims remain the primary legal path to securing financial recovery for your loss.
Who May Be Liable Besides the Intoxicated Driver?
If sufficient evidence supports it, you may find that more than one party owes your Family compensation for their loss:
- The driver;
- An employer if the driver was working at the time of the accident;
- Vehicle owner(s) if they permitted an unauthorized/unlicensed/incompetent/reckless driver behind the wheel (negligent entrustment);
- Alcohol service provider(s); commercial establishments that over-serve alcohol (dram shop claims);
- Another negligent driver who contributed to causing the collision;
- Vehicle or component manufacturer(s) whose defective products resulted in death;
- Uninsured motorist policy(ies)/ underinsured motorist policy(ies) if applicable coverage was available but not validly waived.
Ownership alone is insufficient to establish negligent entrustment. Typically, a negligent entrustment claim involves demonstrating that: (i) an owner allowed an unlicensed/incompetent/reckless driver to operate their vehicle, (ii) it was reasonable for the owner to know about that condition (either actual knowledge or constructive knowledge), and (iii) that driver’s negligence was the direct/proximate cause of the fatal collision.
In order to prevail in a dram shop claim, the plaintiff family must demonstrate that, at the time of service, it was apparent to the server/employee/provider that the patron/customer was “obviously intoxicated to the point of clearly being a danger to himself or herself and/or to others.” Additionally, there must be a causal connection between the provision of alcohol and the damages suffered.
As the Texas Supreme Court has noted, alcohol concentration results alone are not sufficient to establish a prima facie case absent additional evidence demonstrating what was apparent when the alcohol was provided. While circumstantial evidence can be utilized to establish the element of apparent intoxication at the time of service, it is essential to maintain focus on the condition of the customer/patron at the time of service. Examples of types of evidence that may be relevant include: receipts/tabs, surveillance videos, witness testimony. However, as previously stated, evidence of the quantity of alcohol consumed and the timing of consumption may not be determinative regarding whether it was apparent that a customer was intoxicated at the time of service.
An employer may raise the safe harbor defense found in Tex. Alc. Bev. Code § 106.14 if the employer requires all employees serving alcoholic beverages to attend a commission-approved training course, the employee has actually attended such a training program, and the employer does not directly or indirectly encourage violations. Under Texas law, the employee serving the alcohol must actually attend an approved seller-server training program and hold an active TABC certification to establish this defense.
When the intoxicated driver is insured with a minimal policy limit ($30,000), typically representing only a portion of their total assets, there may be very few avenues available for obtaining compensation beyond either an employer or an establishment providing alcohol for his intoxication.
Dram shop claims are governed by Texas Alcoholic Beverage Code Section 2.02. The family has to show that, at the time of service, it was apparent to the provider that the person was obviously intoxicated to the extent that the person presented a clear danger to that person and others, and that the provision of alcohol was a proximate cause of the damages.
The Texas Supreme Court has explained that alcohol concentration evidence alone is insufficient unless it is connected to other evidence showing what was apparent when the alcohol was served. Circumstantial evidence can be used, but the focus remains on the customer’s apparent condition at the time of service. Receipts, tabs, surveillance video, and witness testimony can matter, but quantity and timing evidence do not automatically prove apparent intoxication.
An employer may raise the safe harbor defense under Section 106.14 only if the employer required commission-approved seller training, the employee actually attended the training, and the employer did not directly or indirectly encourage the violation. Certification alone does not automatically establish the defense.
This is not a side issue. When the driver carries only the minimum $30,000 per person liability limit, an employer or an alcohol provider may be the only meaningful source of recovery.
Evidence Counsel Should Identify and Seek to Preserve After a Fatal Drunk Driving Crash
- Accident Reports & Supplemental Reports
- Blood Testing Records & Complete Laboratory Files
- Videos From Body Cameras/Dash Cameras
- Photographic Images/Videos Taken At Scene
- Event Data Recorder Information Where Available/Lawfully Obtainable
- Footage From Nearby Businesses/Traffic Camera Recordings Where Retained
- Tap Receipts/Payment Records/Surveillance Video Footage From Bars
- Witness Statements/Names
- Mobile Phone Location Data Where Available/Lawfully Obtainable
- Medical/Autopsy/Funeral Employment Related Documents
Much of this evidence can disappear rapidly. Surveillance footage retention for restaurants can vary depending upon local policies. Likewise, mobile phones/data storage may be subject to rapid deletion. Many traffic cameras provide only real-time feeds and do not store video. Most of this information will be held by third-party entities requiring consent, a subpoena, search warrant, or other legal documentation.
Therefore, it is prudent not to delay initiating your civil investigation pending completion of the associated criminal investigation. Evidence obtained during the criminal investigation may eventually become available for use in your civil suit, but you will not receive automatic access to criminal discovery materials.
Texas Restitution for Children Who Lose a Parent
Many families are unaware of this area of law.
House Bill 393, enacted in 2023, added Article 42.0375 to the Texas Code of Criminal Procedure. Commonly referred to as “Bentley’s Law,” it applies to qualifying offenses occurring on or after September 1, 2023. This law requires a court to enter an order directing a convicted defendant to make restitution for certain expenses incurred by a child whose parent or guardian died as a direct result of an act of Intoxication Manslaughter committed by the defendant.
The court shall set a monthly amount of support based upon the reasonable needs of the child and the available resources of the surviving parent or guardian. Unless otherwise ordered by the court, these support payments will terminate upon the child attaining age 18 or graduating from high school, whichever occurs later, but payments will cease once the child reaches age 19. Considerations in setting the support payments include: What are the needs of the child? What resources does the child have? What are the resources of the surviving parent or guardian? What is the current standard of living for the child? What are the educational needs of the child? What are the emotional needs of the child? Is there a joint custody arrangement? Are there any work-related childcare expenses?
Although these payments are designed to assist with the loss of a parent, they are not intended to replace potential Wrongful Death recoveries. Pursuant to Article 42.0375(g), restitution payments made under this statute will offset and reduce any subsequent civil Wrongful Death judgment entered against the defendant for the same conduct.
If a defendant is sentenced to prison, restitution payments are deferred during the period of confinement. However, under Article 42.0375(e), the defendant must create a payment plan and begin making payments no later than the first anniversary of the date of their release from confinement, remaining liable for all past-due amounts accrued under the order. Failure to timely resume making payments upon release may result in significant additional legal consequences.
How Long Does a Family Have to File a Claim?
Typically, Texas families have two years in which to file an action for injury resulting in death. See Tex. Civ. Prac. & Rem.Code § 16.003(b). The limitations clock commences running from the date of death-not when the wreck occurred-and is critical when considering that victims may survive in an intensive care unit for extended periods. Exceptions apply. A claim brought by a minor may be tolled, but special statutes can affect that analysis. A governmental entity may bear some responsibility; if so, the Texas Tort Claims Act (§ 101.101(a)) requires written notice to be provided within six months of the incident giving rise to the claim (the date of the crash, rather than the date of death). Valid City Charters may shorten this period to at least sixty days. Actual notice may occasionally meet this requirement.
A lengthy criminal prosecution will not extend the applicable civil statute of limitation period. This means if prosecution lasts three years, it will not save a claim that expired after two years.
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(214) 855-1420How Jay Murray Law Investigates Fatal Drunk Driving Crashes
Our work begins with what is most likely to go away:
- Send preservation requests promptly for vehicles/event data so they are not destroyed.
- Obtain surveillance tapes from establishments where drivers drank/drived and review them before they are deleted.
- Determine where drivers drank, who served drivers, and review tabs/timesheets.
- Determine what policies may apply in addition to employer liability insurance coverage-drinkers liability insurance coverage/umbrella policies/uninsured motorists coverage.
- Consult with accident reconstruction specialists and toxicologists.
- Thoroughly document all losses financial/personal-experienced by the family, including what losses were experienced by children.
- Monitor criminal proceedings as evidence developed during criminal prosecutions may become lawfully available for use in civil litigation.
No. An alcohol concentration test indicating .08 or more may constitute one statutory definition of intoxication-but only if proven that such level existed at the time of operating a vehicle. The state still must connect such result with time of operation and further must prove such intoxication caused death. Separate questions remain as follows: admissibility of blood test results/evidence; testing methodology/test reliability; timing; causation. Yes. The statute includes any substance introduced into the body through ingestion; therefore, valid prescriptions can create grounds for charging intoxication manslaughter if such medications impaired normal mental or physical functions. Yes. Offense exists when death results from intoxication. Prosecutors can seek murder/mandatory life sentence if the victim dies long after collision; however, issues arise as to whether injuries sustained in collision contributed to delayed death. In civil wrongful-death actions, typical two-year statute runs from date of death-not date of wreck. No. A conviction is not a prerequisite. Coordination between the two matters, but waiting can cost the family evidence and, in some situations, the civil filing deadline. Possible, but difficult-to-prove. Texas Dram Shop Statute requires demonstration that it appeared obvious to the provider/seller/bar-server that patron/driver was visibly intoxicated to the point that driver represented clear danger to self/others and that sale/service of alcohol created proximate cause damages. Blood test results and alcohol concentration alone will not support finding-apparent intoxication at time-service without additional evidence demonstrating what appeared visible at time-servicing drinker. Examples of evidence gathering-relevant-timing include receipt records/video-witnesses’ accounts/photos, etc.; however, documentation as described can be obtained early in the investigation. This is common, and is not absolute disqualification for pursuing recovery. Recovery options depend on facts and circumstances as follows: employer; vehicle-owner (under negligence principles); alcohol-provider; responsible driver(s); or possibly Uninsured/Motorists Coverage Policy. In each instance, specific evidence/documentation and applicable legal elements are required.Frequently Asked Questions
Is a driver automatically guilty if the alcohol concentration was 0.08 or higher?
Can intoxication manslaughter involve prescription or illegal drugs?
May charges still be filed if the victim dies days or weeks after the crash?
Does the family have to wait for the criminal trial before filing a lawsuit?
Can a family bring a claim against a bar that served the driver?
What happens if the intoxicated driver has little or no insurance, is there still possible recovery?
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