Texas Courts of Appeals

Virovatz v. State

No. 01-24-00334-CR                   2/12/26

Issue:

Is the mandatory fine under Transportation Code §709.001 for an intoxicated driving offense unconstitutional as a violation of separation of powers because it removes punishment discretion from prosecutors and judges?

Holding:

No. In an issue of first impression, the Court concluded that the power to define offenses and determine penalties belongs to the legislature, not the judiciary, and therefore §709.001 does not violate the separation-of-powers clause of the Texas Constitution. Read opinion.

Commentary:

Prosecutors may not have been aware that there is a mandatory fine for some intoxication-related offenses. In the statute, the Legislature calls the imposition a fine, but the statute reads more like it is a cost or fee. Regardless, the end of the opinion also notes that the fine can be imposed in the discretion of the trial court, pursuant to Art. 42.15 of the Code of Criminal Procedure. With regard to the separation-of-powers issue raised by the defendant, the analysis is clear. The Legislature has often imposed mandatory sentences for various offenses, enhanced or otherwise. And the law is well-settled that the Legislature has the power to do that. The court of appeals also rejected the defendant’s vagueness challenge to the statute. Prosecutors who handle intoxication-related offenses should definitely be aware of this decision and the statute that it construes.