Skip to content


Talk With A Lawyer Today!

Get Started

Is Public Intoxication the Same as an Open Container Violation?

Updated: Feb 13, 2023 @ 10:30 pm

Less than 1 minuteReading Time: Minutes

Texas liquor laws are often confusing for many residents. Behavior that seems harmless enough can easily land you in hot water with a police officer looking to issue a citation. That is why it is important for everyone to understand what the law does–and does not–allow when it comes to alcohol and public places.

One question we get is, “Does public intoxication mean the same thing as an open container violation?”

The answer is no, these actually refer to separate violations of Texas law.

Section 49.02 of the Texas Penal Code deals with public intoxication. It defines the offense as appearing “in a public place while intoxicated to the degree that the person may endanger the person or another.”

An open container violation, in contrast, refers to the possession of an open receptacle of any alcoholic beverage while sitting in the passenger area of a motor vehicle that is on a public street. In other words, if you are sitting on a bench with an open can of beer, that is not against the law. If you are sitting behind the wheel of your car with that same open can, that is a violation–even if the car is parked and not moving.

An open container violation also does not require proof that you are actually intoxicated or have even consumed the alcohol in the receptacle. Of course, if you are legally intoxicated, the open container can elevate a DWI charge from a Class B to a Class A misdemeanor. But an open container charge by itself is only considered a Class C misdemeanor, which is normally disposed of by an officer issuing you a written citation.

Be Careful to Mind Local Ordinances on Public Drinking

Now, what about public intoxication? Like an open container violation, public intoxication is also considered a Class C misdemeanor. This means you will not face any jail time, just a fine of no more than $500.

You should also keep in mind that many Texas cities and municipalities have their own ordinances governing public drinking. For instance, a local ordinance may forbid drinking or possession of open alcohol containers in certain public areas, such as parks or government buildings. And even in areas where public drinking is permitted, including bars and restaurants, state law governing public intoxication still applies.

Also note the legal standard for public intoxication is somewhat broader than DWI. An officer can arrest you for public intoxication without first administering a Breathalyzer or field sobriety tests. It basically comes down to whether the officer observes you acting in a manner that they consider potentially dangerous to yourself or others. So if you are simply stumbling or appear uncoordinated, that may prompt a public intoxication arrest.

Facing Criminal Charges of this Nature?

Speak with an Experienced Attorney Today

While a Class C misdemeanor may not seem like a big deal, it still gives you a criminal record, which can affect your life in many important ways. That is why you should always work with an experienced Houston criminal defense lawyer when facing any sort of misdemeanor charge. Contact the Law Offices of Tad Nelson & Associates in Houston, Galveston or League City if you need to speak with an attorney today.

Houston DWI Lawyer Tad A Nelson is Board Certified in Criminal Law by the TBLS.

Contact A Lawyer

Schedule Your Free Consultation Today

Sidebar Contact Form II
Time limit exceeded. Please complete the captcha once again.


Board Certified by the Texas Board of Legal Specialization
Texas Bar College
State Bar of Texas
Martin Dale Hubbard Client Champion
Rated by Super Lawyers
AV Preeminent Lawyers