The statutory language in penal code 49.09 makes a DWI with a prior intox manslaughter a third degree felony. But darnit, our defendant has a prior involuntary manslaughter (due to intoxication). But the statute refers specifically to priors under 49.08. Are we stuck?

Recently, the Court of Criminal Appeals held that the statutes that preceeded the current versions of sex offense laws are included by implication in the repeat sex offender enhancement. See Griffith v. State, No. 1602 (Tex. Crim. App. 2003). Perhaps that same argument could be used to incorporate the involuntary manslaughter law in its previous form.