Did Texas prosecutors have to charge loss of mental faculties and loss of physical faculties as separate DWI offenses?

Texas AG Opinion JM-777: Pleading DWI Impairment

Plain-English summary

The Hays County criminal district attorney asked whether the statutory phrase "mental or physical faculties" described two separate driving-while-intoxicated offenses that had to be pleaded in alternative counts, or one offense that could be pleaded in a single count.

The Attorney General concluded that it described one offense. Article 6701l-1 defined intoxication in two broad ways: loss of normal mental or physical faculties because of alcohol or specified substances, or an alcohol concentration of 0.10 or more.

Within the first definition, loss of mental faculties and loss of physical faculties were alternative means embraced by the same definition, punished in the same manner, and capable of occurring together. Under the rule quoted from Jurek v. State, they were not distinct offenses and could be charged in one count.

The opinion distinguished the alcohol-concentration provision. The cited cases treated that provision as a separate, independent, additional way of committing the DWI offense, not as a separate offense from driving while intoxicated.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Were loss of mental faculties and loss of physical faculties separate offenses?

No. JM-777 treated them as alternative ways of satisfying the same impairment definition.

Could both alternatives appear in one charging count?

Yes. The opinion concluded that "mental or physical faculties" could be pleaded in one count.

What made the alternatives part of one offense?

They appeared in the same definition, carried the same punishment, were not inconsistent with each other, and could both result from intoxication.

How did the alcohol-concentration definition fit the statute?

The cited decisions described an alcohol concentration of 0.10 or more as a separate and independent way to establish intoxication for the DWI offense.

Background and statutory framework

Article 6701l-1(b) made it an offense to be intoxicated while driving or operating a motor vehicle in a public place. Subsection (a)(2)(A) defined intoxication through loss of normal mental or physical faculties caused by alcohol, a controlled substance, a drug, or a combination of those substances.

Subsection (a)(2)(B) supplied the alternative alcohol-concentration definition. Forte v. State, Russell v. State, and Scherlie v. State described the two statutory routes for establishing intoxication.

The opinion applied Jurek v. State, which stated that multiple statutory methods were not distinct offenses when they appeared in the same definition, were punished alike, and were not repugnant to one another.

Citations and references

Statute:

• V.T.C.S. article 6701l-1(a)(2) and (b), DWI offense and intoxication definitions

Cases:

• Forte v. State, 707 S.W.2d 89 (Tex. Crim. App. 1986), aff'd, 722 S.W.2d 219 (Tex. App. - Fort Worth 1987)
• Russell v. State, 710 S.W.2d 662 (Tex. App. - Austin 1986, pet. ref'd)
• Scherlie v. State, 715 S.W.2d 653 (Tex. Crim. App. 1986)
• Jurek v. State, 522 S.W.2d 934 (Tex. Crim. App. 1975)
• Nicholas v. State, 23 Tex. App. 317, 5 S.W. 239
• Ferguson v. State, 80 Tex. Cr. R. 383, 189 S.W. 271

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0777
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0777.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

THE ATTORNEY GENERAL
OF TEXAS

August 28, 1987

Honorable Charles Chapman
Criminal District Attorney
Hays County Courthouse, Room 208
San Marcos, Texas 78666

Opinion No. JM-777

Re: Whether a loss of "physical or mental faculties" under article 6701l-1, V.T.C.S., represents more than one distinct offense for purposes of a criminal complaint

Dear Mr. Chapman:

You ask

Under the amended DWI statute, does loss of physical or 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 6701l-1, V.T.C.S., provides:

(a) In this article:

. . . .

(2) 'Intoxicated' means:

(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 or more.

. . . .

(b) A person commits an offense if the person is intoxicated while driving or operating a motor vehicle in a public place.

In Forte v. State, 707 S.W.2d 89 (Tex. Crim. 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. 6701l-1(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. 6701l-1(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 6701l-1, the prohibited act may be committed in one of two different ways, stating:

In a prosecution under art. 6701l-1, 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 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. Crim. App. 1986) the Court of Criminal Appeals, quoting from the Court of Appeals, stated that:

The new definition of 'intoxicated' in art. 6701l-1(a)(2)(B) . . . an alcohol concentration of 0.10 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. Crim. 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 6701l-1(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.

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 6701l-1, V.T.C.S., and can be pled in one count in the charging instrument.

JIM MATTOX
Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General