do you have to be operating a vehicle to get an open container ticket in texas?

Question

my husband was parked on the side of the road with key out of the ignition and a texas state trooper pulled up behind him and issued him an open container ticket. the officer never witnessed my husband driving.

Answer 1

No. From the Texas bar webpage:

As of Sept. 1, 2001, it is illegal to possess an open container of alcohol in a motor vehicle. House Bill 5, passed by the 77th Texas Legislature, makes it a Class C misdemeanor to possess an open container of alcohol in the passenger area of a motor vehicle which is on a public highway or the right-of-way adjacent to a public highway.

What is an “open container”?
Under the new law, an “open container” is a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that has been opened, that has a broken seal, or the contents of which are partially removed.

What is considered the “passenger area of a motor vehicle”?
The “passenger area” is the area of a motor vehicle designed for the seating of the operator and passengers. It does not include a locked glove compartment or a similar storage container that is locked, the trunk of a vehicle, or the area behind the last upright seat of the vehicle if the vehicle does not have a trunk.

What is a “public highway”?
This includes any public road, street, highway, interstate, or other publicly-maintained way if any part is open for public use for the purpose of motor vehicle travel.

Does the motor vehicle have to be moving for a violation to occur?
No. Under the law, a person commits an open container offense by possessing an open container in the passenger area of a motor vehicle regardless of whether the vehicle is being operated or is stopped or parked. There is an exception for people who are passengers in a bus, taxi, or limousine; or who are in the living quarters of a motorized house coach or motorized house trailer, including a self-contained camper, motor home, or recreational vehicle.

Answer 2

Nope. In Texas, as well as most states, ANYONE in a vehicle can be cited for open container. This includes passenger in the back seat. Your hubby was lucky he did not get a DUI as Texas is one of the states that considers INTENT to drive as a factor for DUI. If he had the keys in the ignition, he would have been given a DUI for sure, even if he was sitting in your own driveway.

Answer 3

I believe the open container law states that it is illegal to have an open container of alcohol in a motor vehicle. The fact that your husband was not driving only gets him out of a DWI ticket.

Answer 4

in texas you can get a dwi for sleeping off ur drunkenness in a car as long as the keys are available to you ...the open container charge will stick to your hubby, because he was in a car with an open container. simple as that.... couldve been worse, and if a city cop wouldve got him it wouldve been. texas' DPS is a good organization, ur hubby should pay the fine and be glad it wasnt a city cop that found him there.