88th LegislatureCriminal JusticeIssuesSen. Schwertner Scheduled for March Court Date After Being Charged With Driving While Intoxicated

In Texas, a person can be convicted of driving while intoxicated even if the blood alcohol content was less than 0.08 at the time of arrest.
February 16, 2023
State Sen. Charles Schwertner (R-Georgetown) is scheduled to appear in court next month after his arrest on suspicion of driving while intoxicated. The senator is currently free on bond after being taken into custody during the early morning hours of Tuesday, February 7.

According to Travis County court records, Schwertner, an orthopedic surgeon, is set to go before a judge on Tuesday, March 28 in County Court at Law No. 7. The hearing is listed as “general docket unfiled.”

Schwertner’s attorney Perry Minton provided a comment to local CBS affiliate KBTX foreshadowing a possible courtroom feud over the senator’s charges.

“I met with Senator Schwertner very early this morning directly after his unfortunate arrest. He was certainly humble and embarrassed by his circumstances but he was clear-eyed, sober and making good sense,” Minton told the outlet the day his client was released. “Because of this, we’ll be interested in the discovery once it becomes available.”

As he exited the Travis County Jail, Schwertner told a reporter with FOX 7, “I’m deeply sorry, apologetic to my citizens and my family. I made a mistake.”

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Schwertner is the chairman of the Senate Business and Commerce Committee. The morning of his arrest, he was scheduled to chair a committee meeting on the regulation of the Texas energy grid.

In a heavily redacted report obtained by Texas Scorecard, the Austin police officer who arrested Schwertner described “hazardous driving and the indications of intoxication.”

“I conducted a traffic stop on the stated vehicle for failure to maintain a single lane of travel and for changing lanes without using turn signals,” the officer wrote.

“Both violations, accompanied by continued disregard to the marked lanes for an extended period of time, were clear indications that the driver of the stated vehicle was destructed (sic) and possibly intoxicated to the extent that driving on a public road was dangerous to the public.”

The officer continued that Schwertner had “lost the normal use of his mental and physical faculties” because of the “introduction of alcohol into his system.”

Benson Varghese is a board-certified criminal lawyer as well as the founder and managing partner of Fort Worth law firm Varghese Summersett PLLC.

In an interview with The Texan, he explained that a well-known rule of thumb for drinking and driving does not necessarily apply in Texas.

“I think it comes as a surprise to a lot of people that you can be convicted of DWI with a (blood alcohol content) of less than .08, because that’s the definition most people know,” Varghese said.

In Texas, driving while intoxicated is criminalized by Chapter 49 of the Penal Code, which defines “intoxication” as “having an alcohol concentration of 0.08 or more” or “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body.”

DWI is usually a misdemeanor unless it is a subsequent offense, a child is in the car, or someone is injured or killed. A first offense is a Class B misdemeanor with a minimum jail term of three days and a maximum of 180 days. A fine of up to $4,000 is also possible.

Varghese explained that a judge can also opt to place a defendant on probation for up to two years. If the person’s alcohol concentration was above 0.15, the offense is upgraded to a Class A misdemeanor, which carries jail time of up to a year.

When asked about Schwertner’s case, Varghese indicated an attorney’s statements about his client’s condition would not be considered evidence, but they certainly could be incorporated into his arguments in the courtroom.

He said that it’s possible a breath specimen was not obtained when Schwertner was arrested and that his legal team is probably awaiting the results of a blood sample.

Varghese also explained there is variance in how long it takes for a typical DWI case to be resolved, especially if the defendant has an occupational license as do medical doctors, nurses, and especially pilots.

“If there’s a lot to fight about, or if you have a client who simply cannot accept a conviction because they have a professional license or really any reason to fight the case, it will make it take longer,” Varghese said.

Lt. Gov. Dan Patrick published a statement following Schwertner’s arrest, which also drew the attention of his colleagues.

“There is zero excuse for driving under the influence and putting lives in danger, in particular by a member of the legislature whose conduct should be held to a higher standard,” Patrick said. “I will await the final outcome of this issue in court before making any further statement on the matter.”

Patrick also tacitly referenced the arrest and conviction of former Rep. Dan Huberty for driving while intoxicated and causing a traffic accident in Montgomery County. Huberty declined to seek reelection in 2022 and was succeeded by Rep. Charles Cunningham (R-Humble).

Rep. Victoria Neave (D-Dallas) pleaded no contest to a DWI charge in 2017 and remains in the Legislature. Speaker Dade Phelan (R-Beaumont) appointed her chair of the County Affairs Committee last week.

Sen. Judith Zaffirini (D-Laredo) also commented on Schwertner’s arrest in statements to the Laredo Morning Times.

“I was saddened to learn about Sen. Schwertner’s arrest for DUI,” she said. “He has acknowledged his mistake and apologized to his family, constituents and others.”

“I’m grateful and relieved that no one was hurt, and I hope this situation is a reminder to everyone not to drink and drive,” Zaffirini told the newspaper. “Meanwhile, like others who know and like Sen. Schwertner, I will reserve further comments until we learn more.”

The Senate could subject Schwertner to disciplinary action, though expulsion for “disorderly conduct” would require a vote of two-thirds of the membership.


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Hayden Sparks

Hayden Sparks is a senior reporter for The Texan and a lifelong resident of the Lone Star State. He has coached competitive speech and debate and has been involved in politics since a young age. One of Hayden's favorite quotes is by Sam Houston: "Texas has yet to learn submission to any oppression, come from what source it may."