Honorable George W. Fryer   Opinion No. c-669
County Attorney
Freestone County             Re: Whether the 2nd offense
Fairfield, Texas                 of DWI (a felony) Is an
                                 offense consisting of
                                 degrees as provided in
                                 Articles 37.08 and 37.09
                                 of the 1966 Code of Crim-
                                 inal Prooedare and related
Dear Mr. Fryer:                  questions.
        You have asked the opinion of this office as to
whether a district court has jurisdlotlonto convict a per-
son of the misdemeanor offense of driving while intoxicated
In a case where the defend8nt 1s charged with the felony
offense of driving while intoxicated under Article 802b,
Vernonts Penal Code, and the State fails to prove the al-
leged prior convlatlon. In the aase of McKenzie v. State-,
263 S.W.2d,562 (Tex.Crim.1954),it was held that a district
court does have jurlsdlotlonunder such clrcumstanaes. In
addition, Article 4.06 of the Code of Criminal Procedure
expressly provides as follows:
          "Upon the trial of a felony case, the
       court shall hear and determine the case
       as to any grade of offense Included in
       the indictment,whether the proof shows
       8 felony or 8 misdemeanor."


        Your next inquiry is whether or not a conviction
for driving while intoxicated may be used for purposes of
enhancementunder Artlales 61., 62, and 63 of Vernon's Penal
Code. The answer to this question, insofar as Articles 62
and 63 are ooncerned, Is yes, provided the other conditions
set forth in these Article8 exist. See McKee v. State, 351
S.W.2d 246 (Tex.Crlm.1961). With respect t A tl 1 61 the
answer is no. The proof required for enh8n~em&tcu~dergthls
Article would be the same proof required for a conviction
under Artidle 802b of the Penal Code, the statute whiah
defines f%U second offense and makes It a separate and
felony offense.
       Your next question is:

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Honorable George W. Fryer, page 2 (C-669   )


           "Would double jeopardy lie wherein a
        person goes to trial under a felony ln-
        dictment as provided in Art. 802b; the
        State falls to prove the first offense as
        alleged and the primary offense, or second
        offense, is tried in the Mstrict Court
        and the person is acquitted. Could the
        second offense, assuming the District Court
        does not have the jurisdictionof the seo-
        ond offense, be refiled in the County Court
        as a misdemeanorDWI?'
The misdemeanoroffense of DWI Is an offense included In
the allegation of the Indictment alleging the felony offense
of DWI. McKenzie v. State, 263 S.W.2d, 562, (Tex.Crlm.1954).
If the Derendant may properly be found guilty of an offense
lower In grade than that for which he is prosecuted,the
acquittal of such greater offense will bar a subsequent
trial for the lower grade offense. See Irvin v..State 7,
Tex. Crim Rep 78 (1879); Grisham v. State                  .


        Finally, you ask whether the felony offense of.DWI
is an offense oonsistlng of degrees as provided In Artloles
37.08 and 37.09 of the Code of Criminal Procedure. In
McKenzie v. State, supra, the court held that, by virtue of
   ti 1 694 the misdemeanoroffense of DWI Is Included in
a: izdTctme&i charging the felony offense of DWI. Since
Artlole 694 was brought forward as Article 37.08 without
change, you are hereby advised that In our opinion the
holding of the court In ~McKenzlev. State, supra, is at111
determinativeof this question.
                         SUMMARY
          A District Court has jurlsdlctlonof the
       misdemeanoroffense of driving while intoxi-
       cated where the Defendant is charged with
       the felony offense of driving while lntoxi-
       C8ted and the State falls.to 'provethe al-
       leged prior conviction. A convictionof
       driving while Intoxicated may be used.for
       enhancementpurposes, In the appropriate
       airaumstances,under Articles 62 and 63 of
       Vernon's Penal Code. The necessary proof
       of enhancementunder Article 61 of 8 prior
       driving while Intoxicated convlatlonIs the
       proof required by Article 802b, Vernon*s
       Penal Code, which defines DWI, second
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    .

.



        Honorable George W. Fryer, page 3 (C-669 1


                 offense; therefore a prior convictionof
                 misdemeanordriving while Intoxicatedmay
                 not be used for purposes of enhancement
                 under Article 61, Vernon's Penal Code.
                 The misdemeanor offense of driving while
                 intoxicated is an offense Included In the
                 allegation of the Indictment alleging the
                 felony offense of driving while lntoxi-
                 cated, and acquittal of the charge of
                 driving while lntoxiaated, second offense,
                 would bar a subsequent prosecution for
                 driving while Intoxicated,first offense.
                                  Yours very truly,
                                  WAGGONER CARR
                                  Attorney General of Texas



        REO/er
        APPROVED:
        OPINION COMMITTEE
        w. 0. Shultz, Chairman
        Mlltbn Richardson
        Lonnle F. Zwlener
        Pat Bailey
        Robert Flowers
        APPROVEDFORTRE ATTORNEY GENERAL
        BY: T. B. Wright




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