Texas open container law can apply during tailgating season when an open alcoholic beverage is in the passenger area of a motor vehicle located on a public highway. The rule can apply even when the vehicle is stopped or parked.
For College Station game days, three facts can have a major effect on whether Texas Penal Code Section 49.031 applies:
- What type of container is present
- Where the container is located inside the vehicle
- Where the vehicle itself is located
An open container violation under Texas Penal Code Section 49.031 is a Class C misdemeanor. A separate provision can increase the minimum confinement period for a DWI when the person operating the vehicle had an open container of alcohol in the person’s immediate possession.
Tailgating itself is not an open container offense. The legal question depends on how the alcohol, vehicle, location, possession, and any alleged driving activity fit the statute.
The Greening Law Group represents people facing alcohol-related allegations in College Station, Texas, and can evaluate the evidence surrounding a game-day citation or DWI investigation.
What Counts as an Open Container in Texas? 
Texas Penal Code Section 49.031 defines an open container as a bottle, can, or other receptacle that contains any amount of alcoholic beverage and:
- Is open
- Has been opened
- Has a broken seal
- Has had some of its contents removed
The definition can cover more than an uncovered beer bottle. A cup containing a mixed drink, a beer can that was previously opened, or a partially consumed bottle can qualify.
Closing a bottle again or putting a lid on a cup does not necessarily change its status under the statute if the container was already opened or some of its contents were removed.
For more information about the statewide rule, visit:
https://www.craiggreeninglaw.com/blog/understanding-texas-open-container-law/
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About UsWhere the Open Container Is Located Matters
Texas Penal Code Section 49.031 focuses on an open container located in the passenger area of a motor vehicle.
The passenger area generally means the portion of the vehicle designed for the seating of the driver and passengers. The statutory definition excludes:
- A locked glove compartment or similar locked storage container
- The trunk of the vehicle
- The area behind the last upright seat when the vehicle does not have a trunk
These distinctions can make a difference during a College Station tailgate.
For example, an opened bottle in a front cupholder is located differently from an opened bottle stored in a trunk. An open container sitting on a back seat also presents different facts from one stored behind the last upright seat of a vehicle that does not have a trunk.
Where the Vehicle Is Located Also Matters
Texas Penal Code Section 49.031 applies when the motor vehicle is located on a public highway.
For purposes of this law, a public highway includes the area between and immediately adjacent to the boundary lines of a public road, street, highway, interstate, or other publicly maintained way that is open for public motor vehicle travel. The definition also includes the right-of-way of a public highway.
The statute applies whether the vehicle is:
- Moving
- Stopped
- Parked
Turning off the engine or parking the vehicle does not by itself prevent Section 49.031 from applying when the vehicle remains on a public highway.
This distinction can become especially relevant during football season because tailgating takes place in many types of locations around College Station, including parking areas, campus spaces, private property, and areas near public roads.
A private parking area does not automatically become a public highway under Section 49.031. Separate Texas A&M University, venue, parking, property, or event rules may still restrict alcohol even when the state open container statute does not apply to the location.
The location of the vehicle can be just as significant as the location of the alcohol. Small differences in where a vehicle is parked may change the legal analysis.
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Can You Have an Open Container in a Parked Vehicle at a Tailgate?
The answer depends on the specific facts, especially where the vehicle is located and where the alcohol is kept.
Consider two examples.
A truck is parked along a public roadway in College Station, and an opened beer is sitting in the front cupholder. Texas Penal Code Section 49.031 may apply even though the truck is parked and the engine is off.
In a different situation, a vehicle is parked in a private tailgating area and an opened beverage is outside the vehicle. Section 49.031 may not apply in the same way because the location and possession facts are different.
Other alcohol, property, university, or event rules may still apply.
Evidence that may establish where the vehicle was located includes:
- Parking maps
- Photographs
- Video recordings
- Signs
- Parking permits
- Entry records
- Witness statements
- Police body-camera footage
The exact position of the vehicle can become a disputed fact in an open container case.
Who Can Receive an Open Container Citation?
Texas law does not limit an open container violation to the driver.
Section 49.031 applies to a person who knowingly possesses an open container in the passenger area of a qualifying motor vehicle located on a public highway.
When several people are inside or around a vehicle, possession may become a factual issue. Evidence may include:
- Where the container was found
- Who was holding the container
- Who had access to or control over the area
- Statements made by the driver or passengers
- Body-camera footage
- Photographs or videos
- Other evidence showing possession or control
Texas law also provides exceptions for certain passengers.
The open container prohibition does not apply in the same way to a passenger who is in:
- A vehicle designed, maintained, or used primarily to transport people for compensation, including a bus, taxicab, or limousine
- The living quarters of certain motorized house coaches or motorized house trailers, including qualifying campers, motor homes, and recreational vehicles
These exceptions are specific. Being a passenger in an ordinary personal vehicle does not create the same exception.
What Is the Penalty for a Texas Open Container Violation?
A violation of Texas Penal Code Section 49.031 is a Class C misdemeanor.
Under Texas law, a Class C misdemeanor is punishable by a fine of up to $500.
Section 49.031 also contains a citation procedure. When a peace officer charges a person solely under this section, the statute directs the officer to issue a written citation and notice to appear rather than take the person before a magistrate. If the person signs the required written promise to appear, the officer must release the person.
Receiving a citation does not mean that a person has been convicted. It does create a court obligation that should not be ignored.
For information about alcohol-related criminal allegations in College Station, visit:
https://www.craiggreeninglaw.com/college-station-alcohol-offenses-lawyer/
An Open Container Can Affect a DWI Case
An open container allegation and a DWI allegation are separate legal issues.
Possessing an open container does not by itself prove intoxication. A DWI allegation also does not automatically establish that a person unlawfully possessed an open container.
The consequences can change when both allegations arise from the same incident.
Under Texas Penal Code Section 49.04, a DWI is generally a Class B misdemeanor with a minimum confinement period of 72 hours when no other statutory provision changes the classification or punishment.
If the state proves that the person operating the motor vehicle had an open container of alcohol in the person’s immediate possession at the time of the DWI offense, the offense remains a Class B misdemeanor, but the minimum confinement period increases to six days.
The phrase “immediate possession” can make the location of the container especially relevant. Officers and attorneys may examine where the alcohol was found in relation to the driver, along with the other evidence from the DWI investigation.
For information about College Station DWI defense, visit:
https://www.craiggreeninglaw.com/college-station-dwi-lawyer/
What Evidence Can Matter After a Game-Day Citation or Arrest?
Open container cases can depend on details that are easy to overlook during a crowded College Station game day.
Evidence may help determine where the vehicle was located, where the container was found, who possessed it, and whether other allegations are supported.
Potential evidence includes:
- Police body-camera footage
- Dash-camera footage
- Photographs showing where the vehicle was parked
- Parking passes
- Parking receipts
- Entry records
- Tailgate photographs and videos
- Witness statements
- Maps showing nearby roadways, rights-of-way, and private property
- Photographs showing the location of the container
- Statements attributed to the driver or passengers
- DWI testing records
- Arrest and booking records
- Driver-license paperwork if the incident involved a DWI investigation
Preserve original photographs and videos when possible. Edited files may not contain the same information as the originals.
Public social media posts can also become evidence. Consider avoiding posts about the incident while the case is pending.
Practical Steps Before Leaving a College Station Tailgate
Planning before leaving a tailgate can reduce both legal risk and uncertainty.
Consider these steps:
- Arrange transportation before drinking begins.
- Keep opened alcoholic beverages out of the passenger area of a vehicle that will travel on a public highway.
- When lawful, store opened containers in the trunk or another location specifically excluded from the passenger-area definition.
- Do not assume that a parking space near a tailgate is private property.
- Pay attention to roadways, shoulders, temporary traffic routes, and rights-of-way.
- Follow Texas A&M University, property, venue, and parking rules that apply to the specific tailgating location.
- Use a sober driver, rideshare, shuttle, or another lawful transportation option when alcohol has been consumed.
Texas A&M University rules can impose additional restrictions on alcohol use, possession, or distribution on university premises and at university-sponsored events. Game-day participants should follow both Texas law and the rules governing the property where the tailgate takes place.
What If a Student or Guest Is Under 21?
People under 21 may face separate alcohol-related laws in Texas.
An open container investigation involving a student can lead to issues beyond Section 49.031, depending on the person’s age, possession of alcohol, consumption, driving, and other circumstances.
Texas A&M University rules may also create separate consequences for students or student organizations.
For information about College Station alcohol offenses, visit:
https://www.craiggreeninglaw.com/college-station-alcohol-offenses-lawyer/
What Should You Do After an Open Container Citation?
An open container citation is an allegation, not a conviction.
After receiving a citation, keep the citation and every document provided by law enforcement. Write down what happened while the details remain fresh.
Useful information to preserve may include:
- The exact location of the vehicle
- The location of the container
- Who was inside or near the vehicle
- Who owned or handled the container
- Photographs of the parking area
- Parking permits or receipts
- Names and contact information for witnesses
- Videos from the tailgate
- Communications related to parking or transportation
Do not ignore the appearance date listed on a citation.
If the encounter also involved a DWI investigation, preserve all documents connected with the arrest, release, testing request, driver-license notice, bond conditions, and court date.
Open container evidence may become part of the larger DWI investigation, which means the facts should be evaluated together rather than separately.
Speak With a College Station Defense Lawyer
If you received an open container citation or were investigated for DWI after a College Station tailgate, you can have the specific facts reviewed before deciding how to respond.
The Greening Law Group can examine issues such as the location of the vehicle, the location and condition of the container, alleged possession, police video, witness accounts, and DWI evidence.
The firm serves clients in College Station, Texas, and nearby areas.
Call 979-773-7010 or visit:
https://www.craiggreeninglaw.com/contact-us/
to discuss your situation with The Greening Law Group.
This article is for informational purposes only and is not legal advice. Consult an attorney about your specific circumstances.
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