Texas DWI Superfines

On Sept. 1, 2019, the Texas Driver Responsibility Program was repealed removing the DWI Surcharge in Texas. Under that program a surcharge was assessed for a DWI in the amount of $1,000 per year; $1,500 per year for a second or subsequent conviction within three years; and $2,000 per year for a second conviction or if the blood alcohol content of the person was .15 or more. This surcharge was assessed for three years. Therefore, the surcharge was a total of either $3,000, $4,500 or $6,000 to be paid over three years.

In the same month, however, a new Superfine was imposed under the Transportation Code. The code states a Superfine will be assessed for DWIs in the amount of $3,000 for the first conviction; $4,500 for a second or subsequent conviction within a 36-month period; and $6,000 for a first or subsequent conviction with an alcohol content of 0.15 or more at the time analysis was performed.

As you can see, this copies the previous law for additional costs to your clients on DWI cases. However, there are some changes to the new code that are helpful.

No Transition

First, the law does not have any transition language. Anyone charged with a DWI before Sept. 1, 2019, would no longer be affected by the repealed surcharge law. So, no surcharge would be assessed. Even better, those that had previously owed a surcharge would no longer have to pay. Also, any DWI that occurred before Sept. 1, 2019, would not be bound by the new Superfine.

This initially caused some confusion in the courts. However, in most jurisdictions, it is now settled that any DWI charged before Sept. 1, 2019, would have fallen under the repealed program and no surcharge would be assessed. All DWIs charged after Sept. 1, 2019, would fall under the new code. Watch those dates!

Besides this window of time between old law and new, it doesn’t appear much else has changed. However, there are two major differences.

Final Convictions Only

First, the new transportation code requires a final conviction. For many years under Texas law, “finally convicted” meant jail sentence. When someone receives probation, it’s not final for enhancement purposes. But be careful, a probated sentence can turn into a final conviction if probation is revoked. See Ex parte Pue, 552 S.W.3d 226, 230–31 (Tex. Crim. App. 2018).

When “finally convicted” language was added to Chapter 49 of the Penal code, it is presumed that the legislature is aware of the Pue case. There’s case law on that as well. Check In re Allen, 366 S.W.3d 696, 706 (Tex. 2012). In that case, the presumption is that the legislature is aware of relevant case law. Therefore, only probation that is turned into a final conviction by a revocation is a “final conviction” subject to a Superfine.

This interpretation is in line with the Texas District and County Attorney’s Association’s understanding of the statute. Jurisdictions appear to be following suit and only applying the Superfine to cases with jail/prison sentences and not for probation. It has been seen in some jurisdictions; this has even been added to the plea documents used by the courts.

The Indigent

Secondly, according to the new code, if the court makes a finding that the person is indigent, the court SHALL waive all fines and costs imposed on the person under this section. Specifically, the code clearly defines the requirements that MUST be provided to the court to establish that the person is indigent (household income cannot exceed 125% of the income established by the federal poverty guidelines):

• A copy of the most recent federal income tax return OR
• A copy of the most recent wages statement OR
• A document from a federal agency, state agency or school that indicates the person receives assistance from: the food stamp program, federal special supplemental nutrition program for women, infants and children, the medical assistance program, the child health plan program, OR the national free or reduced price lunch program.

In conclusion, there are no longer any DWI surcharges and any DWI case that occurred before Sept. 1, 2019, will not be affected by Superfines. Superfines should only be imposed on those whose DWI convictions are found to be final either through a jail/prison sentence or through the revocation of their probation. If a Superfine is to be imposed, the client may be able to meet the requirements to be found indigent and have the Superfine waived.