Criminal Defense Laws in Texas

Criminal Defense Law in Texas: Overview

Texas has one of the largest criminal justice systems in the United States and is known for its firm approach to law enforcement and punishment. The state classifies felonies into five categories — capital felony, first degree, second degree, third degree, and state jail felony — and misdemeanors into three classes. Texas enacted a broad castle doctrine and stand your ground law in 2007, codified in Texas Penal Code Chapter 9, providing extensive protections for the use of force in self-defense. The state retains the death penalty and carries out more executions than any other state. Texas uses the term DWI (driving while intoxicated) rather than DUI, with strict penalties including mandatory jail time for repeat offenses and the possibility of felony charges on a third offense. While marijuana remains illegal for recreational use, Texas passed the Compassionate Use Act in 2015 allowing limited medical use of low-THC cannabis. The state has both expungement (expunction) and nondisclosure orders as mechanisms for clearing criminal records, each with distinct eligibility requirements.

Key Statutes & Deadlines

DWI Penalties and Enhancement Structure

Texas DWI law under Tex. Penal Code § 49.04 imposes escalating penalties. A first offense DWI is a Class B misdemeanor with a minimum 72 hours in jail (six days if an open container was present), up to 180 days, a fine up to $2,000, and license suspension of 90 days to one year. A second offense is a Class A misdemeanor with a mandatory minimum of 30 days in jail, up to one year, and a fine up to $4,000. A third DWI is a third-degree felony carrying 2 to 10 years in prison and a fine up to $10,000. DWI with a BAC of 0.15% or higher elevates a first offense to a Class A misdemeanor. DWI with a child passenger (under 15) is a state jail felony regardless of prior history. Texas also imposes surcharges through its Driver Responsibility Program and requires ignition interlock devices in many DWI cases.

Castle Doctrine and Stand Your Ground

Texas has one of the most expansive self-defense laws in the country. Under Tex. Penal Code § 9.31 and § 9.32, a person is justified in using force, including deadly force, when they reasonably believe it is immediately necessary to protect themselves against another's use or attempted use of unlawful force. The 2007 amendments eliminated the duty to retreat in any location where the person has a right to be and is not engaged in criminal activity. The castle doctrine under § 9.32 provides a presumption that deadly force was reasonable when used against a person who unlawfully and forcibly entered the actor's habitation, vehicle, or place of business. Texas law also permits the use of deadly force to prevent certain property crimes at night, including theft and criminal mischief, under Tex. Penal Code § 9.42, a provision unique among American states.

Expunction vs. Nondisclosure

Texas provides two distinct mechanisms for clearing criminal records. Expunction (Tex. Code Crim. Proc. Art. 55.01) completely destroys all records related to an arrest and is available when charges are dismissed, the person is acquitted, pardoned, or never charged within the applicable statute of limitations period. Nondisclosure orders (Tex. Gov't Code § 411.071 et seq.) seal records from public view but allow law enforcement and certain agencies to access them. Nondisclosure is available for offenses resolved through deferred adjudication community supervision, with waiting periods that vary by offense: immediately for some misdemeanors, two years for other misdemeanors, and five years for felonies. Certain offenses, including family violence, sexual offenses, and stalking, are ineligible for nondisclosure.

Texas Court System

Texas has a complex court system. Criminal cases are tried in County Courts at Law (misdemeanors) and District Courts (felonies). Justice Courts and Municipal Courts handle fine-only offenses such as traffic violations and Class C misdemeanors. Texas has 14 intermediate Courts of Appeals that handle criminal appeals from trial courts. The Court of Criminal Appeals is the state's court of last resort for all criminal matters, which is separate from the Texas Supreme Court (which handles civil cases). Capital murder cases with a death sentence receive automatic direct appeal to the Court of Criminal Appeals. Federal criminal cases are heard across the Northern, Southern, Eastern, and Western Districts of Texas.

Damages & Penalties

Texas felony penalties are: capital felony, death or life without parole; first degree, 5 to 99 years or life and up to $10,000 fine; second degree, 2 to 20 years and up to $10,000 fine; third degree, 2 to 10 years and up to $10,000 fine; state jail felony, 180 days to 2 years in a state jail facility and up to $10,000 fine. Misdemeanor penalties are: Class A, up to 1 year in jail and $4,000 fine; Class B, up to 180 days and $2,000 fine; Class C, fine only up to $500. Texas uses enhancements for repeat offenders under the habitual offender provision (Tex. Penal Code § 12.42), where a person convicted of a second felony may face an enhanced sentencing range, and a person convicted of a third felony may face 25 to 99 years or life.

Recent Legislative Changes

Texas passed the SAFE-T Act provisions expanding access to personal bond for certain nonviolent offenses and created specialty courts including veterans treatment courts and mental health courts. The state expanded the Compassionate Use Program in 2019 and 2021 to include additional qualifying conditions for low-THC cannabis, though the program remains restrictive compared to most medical marijuana states. In 2021, Texas passed SB 6 (the Damon Allen Act) restricting cash bail for certain violent offenders and requiring judicial review of bail amounts. Several Texas cities, including Houston and Dallas, have adopted cite-and-release programs for low-level marijuana possession, though the drug remains illegal statewide.

Frequently Asked Questions