Texas law says, you cannot drive while you’re impaired from alcohol and it says that you cannot drive with an open container. A DWI lawyer will tell you that if you are caught with an open container, the character of your offense will be changed and jail time will automatically be added to the minimum of the sentence you receive. If you are stopped, an officer is going to smell the open container, which will continue to have an odor, and he or she will assume you are drinking and driving.
So don’t drive with an open container — even one that’s empty! Don’t take any chances — if you have an empty container in your vehicle, just throw it away in the trash (and definitely not out of your car window).