The following blog post is not intended to be legal advice.
Texas Governor, Greg Abbott, signed the Alex Brown Memorial Act Tuesday, also known as the “texting bill” or the “texting-and-driving bill.” The bill is an important step forward in Texas driving safety laws, and comes after several attempts to pass the same or similar bill in previous sessions of the Legislature.
The bill is named after Alex Brown, a 17-year-old senior from Seagraves, Texas. She was killed on November 10, 2009, when the truck she was driving crashed and rolled. She had been texting four different friends at or near the time of the crash. Her parents started the Remember Alex Brown Foundation to raise awareness of the dangers of distracted driving, and they also visit high schools around the state to do the same.
What’s Illegal and What are the Penalties?
The Alex Brown Act, which can be read in full here, applies to a very limited range of conduct. Starting September 1, 2017, it will be illegal to read, write, or send electronic messages while driving for the purposes of communicating with another person. The Act does provide exceptions relating to reporting emergencies or reading messages related to emergencies. To be prosecuted, the behavior must be committed in the presence of or within the view of a peace officer or established by other evidence, like cell phone records.
The penalties for most offenses are Class-C, fine-only penalties. First-time offenders could see a fine between $25 and $99, and repeat-offenders could see a fine between $100 and $200. However, if you’re violating the new law and you cause death or serious bodily injury, it is a Class A Misdemeanor with a fine up to $4,000, and you could spend up to a year in jail. Convictions won’t add points to your license unless you’re under 18 years old.
Not an End to Patchwork of Differing Laws
One of the goals of the bill was to end the patchwork of laws that vary from city to city. However, because the new law only applies to electronic messaging—and more importantly, because it preempts local ordinances ONLY insofar as they relate to electronic messaging—there will still be a patchwork of local laws related to non-messaging use of phones.
For instance, the new state law does not pertain to phone calls in any way, so local ordinances banning handheld phone calls will still be in effect. An example of this would be if you are driving into the Panhandle city of Amarillo while holding and talking on your phone, you would be violating its city ordinance that completely bans the handheld use of cell phones, including for phone calls.
The same could be true for local ordinances that ban touching a phone for music or GPS. Those local ordinances will still be in effect, and that conduct would still violate them.
Don’t Read My Texts, Bro
The new state law does not affect your cell phone privacy. The new law does not allow peace officers to take or inspect mobile phones, but it also does not affect whether peace officers can do so under other laws. To put it simply: the new law doesn’t change how and when a peace officer can take or inspect a driver’s phone.
What is Still Legal?
The new state law only applies while the vehicle is moving. So it will be legal to read, write, and send electronic messages while you’re stopped at a red light. Interestingly, because this is related to electronic messaging, this would preempt local ordinances banning such activity.
The Act does not apply to non-messaging uses of mobile phones while driving. For instance, it will still be legal—under state law at least—to:
- Make phone calls (both handheld and hands-free),
- Interact with the phone to play music,
- Type an address into a phone for GPS guidance,
- Type text into a phone to perform a google search,
- Take selfies while driving, as long as it’s not part of a messaging action (Snapchat?),
- Watch videos on a mobile phone while driving, or
- Browse the web on a mobile phone while driving.
Note: while these actions will not be illegal under the new state law, they can still be outlawed by city ordinances; see “Patchwork” section above. Also, peace officers observing someone interacting with their phone may very well stop the person and ticket them, regardless of what they can prove the driver was doing on their phone, at which point it would be up to the courts to sort out what amount of evidence is required to sustain a conviction.
Legal Versus Safe
It has been known for some time, legal or illegal, the safest course of action is to not use a mobile phone in any way while driving, even talking while using a hands-free device.
Below is a detailed breakdown of the new law.
- Driver’s Education: The new law adds a requirement to a driver’s license examination to include the “knowledge of the effect of using a wireless communication device, or engaging in other actions that may distract a driver, on the safe or effective operation of a motor vehicle.”
- “Electronic message” means data that is read from or entered into a mobile phone for the purpose of communicating with another person.
- “Hands-free device” means any of the following:
- Speakerphone capability;
- A telephone attachment or another function or piece of equipment, regardless of whether permanently installed in or on the phone or vehicle, that allows the use of the phone without the driver’s hands, except to activate or deactivate a function of the phone or hands-free device;
- Voice-operated technology; and
- Push-to-talk functions.
- Offense Defined: An operator commits an offense if the operator uses a mobile phone to read, write, or send an electronic message while operating a motor vehicle unless the vehicle is stopped. To be prosecuted, the behavior must be committed in the presence of or within the view of a peace officer or established by other evidence.
- Affirmative defenses: It is an affirmative defense to prosecution if the driver used the mobile phone:
- In conjunction with a hands-free device;
- To navigate using a global positioning system or navigation system;
- To report illegal activity, summon emergency help, or enter information into a software application that provides information relating to traffic and road conditions;
- To read an electronic message that the driver reasonably believed concerned an emergency;
- That was permanently or temporarily affixed to the vehicle to relay information during the operator’s occupational duties between the operator and (A) a dispatcher, or (B) a digital network or software application service; or
- To activate a function that plays music.
- Non-Applicability: The new law does not apply to emergency or law enforcement vehicles while acting in an official capacity or to FCC-licensed radio operators while using radios.
- A first offense is a misdemeanor punishable by a fine of at least $25 and not more than $99, unless previously convicted, in which case it is a fine at least $100 and not more than $200.
- An offense is a Class A misdemeanor punishable by a fine not to exceed $4,000 and confinement in jail for a term not to exceed one year if it is shown on the trial of the offense that the defendant caused the death or serious bodily injury of another person.
- Signage: TXDOT shall post signs at each point where a US or Interstate Highway enters Texas. The signs will inform drivers that mobile phone use while driving for electronic messaging is prohibited and the driver can be fined.
- Phone Search: A peace officer may not take or otherwise inspect a mobile phone unless the Code of Criminal Procedure, the Penal Code, or other law authorizes them to do so.
- Preemption: This law preempts all local ordinances, rules, or other regulations relating to the use of mobile phone use by drivers for reading, writing, or sending electronic messages.
- Points: The department may not assign points to a person’s license for an offense under this section, except for car drivers under 18 and motorcycle and moped drivers under 17.
- Start Date: This law becomes effective for offenses committed on or after September 1, 2017.