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 Crim-
inal Prooedare and related
Dear Mr. Fryer: questions.
You have asked the opinion of this office as to
whether a district court has jurisdlotlonto convict a per-
son 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 al-
leged 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 jurlsdlotlonunder 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
enhancementunder 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:
-3225-
Honorable George W. Fryer, page 2 (C-669 )
"Would double jeopardy lie wherein a
person goes to trial under a felony ln-
dictment 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 jurisdictionof the seo-
ond offense, be refiled in the County Court
as a misdemeanorDWI?'
The misdemeanoroffense 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 misdemeanoroffense 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 ~McKenzlev. State, supra, is at111
determinativeof this question.
SUMMARY
A District Court has jurlsdlctlonof the
misdemeanoroffense of driving while intoxi-
cated where the Defendant is charged with
the felony offense of driving while lntoxi-
C8ted and the State falls.to 'provethe al-
leged prior conviction. A convictionof
driving while Intoxicated may be used.for
enhancementpurposes, In the appropriate
airaumstances,under Articles 62 and 63 of
Vernon's Penal Code. The necessary proof
of enhancementunder Article 61 of 8 prior
driving while Intoxicated convlatlonIs the
proof required by Article 802b, Vernon*s
Penal Code, which defines DWI, second
-3226-
.
.
Honorable George W. Fryer, page 3 (C-669 1
offense; therefore a prior convictionof
misdemeanordriving while Intoxicatedmay
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 lntoxi-
cated, 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
-3227-