By Collin County Criminal Defense Lawyer Jeremy Rosenthal
(972) 369-0577
Texas Penal Code 49.04(a) is Texas’ DWI law and states, “A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.”
“Public place” means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops. Tex.Pen.C. 1.07(40).
Obviously when the Texas legislature wrote the drunk driving law, for whatever reason only they truly know, they wanted to omit places that weren’t public… i.e. private places. My guess (and that’s all it is) is that the legislature probably wanted to preserve Texan’s ability to consume alcohol while engaging in sport such as hunting or fishing on private property.
The Courts of Appeals have essentially written the “public place” requirement out of the law over time. Today, the language of Tex.Pen.C. 1.07(40) is virtually meaningless. A handful of legal opinions over the years address the issue of whether a place is “public” for the purposes of DWI.
A 2009 unpublished opinion, Campos v. State, 2009 Tex. App. LEXIS 7487 (Tex.App.– Austin, 2009), sums up how this provision has been effectively eliminated. I’ve included Campos’ internal citations so you can see how the logic has been patched together over time:
“…Texas courts have held that even areas that strictly limit public access may qualify as public places. When determining whether an area is a public place, the relevant inquiry is whether the public or a substantial group of the public has access to the place in question. Banda v. State, 890 S.W.2d 42, 52 (Tex. Crim. App. 1994); Shaub v. State, 99 S.W.3d 253, 256 (Tex. App.–Fort Worth 2003, no pet.). The level of access does not need to be complete or entirely unrestricted, provided members of the public could gain access under the right set of circumstances. See State v. Gerstenkorn, 239 S.W.3d 357, 359 (Tex. App.–San Antonio 2007, no pet.) (holding that gated community “with a security guard and limited access” was public place); Woodruff, 899 S.W.2d at 445 (holding that street in Air Force base was public place). Indeed, “[a]uthority exists for the proposition that ‘if the public has any access to the place in question, it is public.'” Woodruff, 899 S.W.2d at 445-46 (quoting 6 Michael B. Charlton, Texas Criminal Law ß 1.6 (Texas Practice 1994)…” Emphasis added.
For our non-legal experts at home, let’s dissect this just a bit more. You can see there have been several cases which have addressed the issue. And in each case what has happened is that the Courts of appeal have nit-picked the facts to declare places where the defendant was arrested as “public places.” So we have a gated community is now a public place (Woodruff), then an Air Force base is a public place (Gerstenkorn)… and on and on… Finally the Court declares, that anywhere a member of the public could gain access under the right set of circumstances (a ridiculously over-broad and subjective phrase), can be a public place.
Under the right set of circumstances… Really? … let’s think about that for a minute. If we flip the phrase around and ask ourselves what types of places are private… are there any places that even qualify under that standard?
— A 200 acre fenced-in deer lease? It’ a public place because ‘under the right set of circumstances’ a member of the public could gain access by being invited on or getting lost;
— A fenced in golf course? It’s a public place because ‘under the right set of circumstances’ someone could pay money and operate a motorized golf cart (or an employee drive riding lawnmower);
— The star on the middle of the field at Cowboy’s Stadium in Arlington? Well, ‘under the right set of circumstances’ a member of the public could drive a car with Roger Staubach in the back waving to the crowd… so now even that’s a “public place.”
Didn’t the definition under 1.07(40) say a public place is a place where “a substantial group of the public.. has access?”
Presto chango! Through slight-of-hand, a “substantial group” of the public changed into “any” member of the public… and all in the name of public safety and law enforcement. So, in summation, there isn’t a place anywhere in the State of Texas that a court can’t declare “public” if the DWI facts make them mad enough regardless of the wording of the Texas Penal Code.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any issue, you should contact an attorney directly. Contacting attorney through this blog does not create an attorney-client relationship. Information communicated to attorney through this blog is not confidential.