Navigating Texas’s Ban on Texting While Driving

Navigating Texas's Ban on Texting While Driving.

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During the 2017 legislative session, the Texas Legislature enacted new Texas Transportation Code §545.4251, which seeks to improve the safety of the state’s roads by prohibiting certain uses of wireless devices while driving.[1]

The Ban

Under the new law, it is an offense to use a “portable wireless communication device to read, write, or send an electronic message while operating a motor vehicle unless the vehicle is stopped.”[2] An electronic message is defined as data read or entered into a wireless device for the purpose of communicating with another person.[3] This definition encompasses texting and e-mailing, and it likely also includes the use of popular communication applications such as Facebook, Facebook Messenger, and Twitter.[4] Engaging in a banned use of a wireless device is a misdemeanor offense punishable by a fine ranging from $25 to $99 for a first offense and $100 to $200 for subsequent offenses.[5]

Limitations on Scope

In addition to establishing the above ban, §545.4251 also contains a few key limitations. First, it is not an offense to engage in an otherwise banned use of a wireless device if the vehicle is stopped.[6] Second, a peace officer stopping a vehicle for an alleged violation of the statute is not authorized to take possession of or inspect the driver’s wireless device unless doing so is authorized under the Texas Code of Criminal Procedure, the Texas Penal Code, or another law.[7] Finally, a banned use can be prosecuted only if it is (1) committed in the presence of a peace officer, (2) committed within view of a peace officer, or (3) established by other evidence.[8]

Affirmative Defenses

Section 545.4251(c) lists a number of affirmative defenses available in a prosecution for violation of the statute. A driver can assert that rather than using the wireless device to communicate with another person, she was using it for navigation or to play music.[9] If the driver was using the wireless device to communicate with others, she still has an affirmative defense if she was using the device (1) in conjunction with a hands-free device, (2) to report illegal activity, (3) to request emergency assistance, (4) to operate an application that shares traffic information with others, or (5) to read an electronic message that she reasonably believed was related to an emergency.[10]

A Few Practical Tips

  • Be aware that while §545.4251 primarily targets texting and e-mailing while driving, other communicative uses of wireless devices also fall within the scope of the statute.
  • Be prepared to be pulled over if using your wireless device while driving. Even if using your wireless device for a permitted purpose, it will often be difficult for peace officers to determine that purpose at a distance.
  • Check for local ordinances that impose additional restrictions on the use of wireless devices while driving.[11] Governor Abbott had hoped for broader legislation that would preempt the local ordinances, but no such bill was passed during the Legislature’s special session.
  • Pick up a copy of O’Connor’s Texas Crimes & Consequences for a breakdown of the elements and penalties under §545.4251.

[1] See H.B. 62, 85th Leg., R.S., eff. Sept. 1, 2017.

[2] Tex. Transp. Code §545.4251(b); see also id. §545.425(a)(2) (defining “wireless communication device”).

[3] Id. §545.4251(a)(1).

[4] See Joel Eisenbaum, New Texting While Driving Ban Full of Loopholes, Click2Houston, Sept. 7, 2017; Texas DOT, Cell Phone Ordinances.

[5] Tex. Transp. Code §545.4251(b), (e).

[6] Id. §545.4251(b).

[7] Id. §545.4251(i).

[8] Id. §545.4251(b).

[9] Id. §545.4251(c).

[10] Id.; see also id. §545.425(a)(1) (defining “hands-free device”). The statute contains additional exceptions and affirmative defenses for uses affiliated with a limited number of occupational duties. See id. §545.4251(c)(5), (d).

[11] See Texas DOT, Cell Phone Ordinances.