Operation and Movement of Vehicles In Texas Transportation Code–Fort Worth, Texas Trucking Defense Law Attorneys

TEXAS TRANSPORTATION CODE

TITLE 7. VEHICLES AND TRAFFIC

SUBTITLE C. RULES OF THE ROAD

CHAPTER 545. OPERATION AND MOVEMENT OF VEHICLES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 545.001. DEFINITIONS. In this chapter:
(1) “Pass” or “passing” used in reference to a vehicle means to overtake and proceed past another vehicle moving in the same direction as the passing vehicle or to attempt that maneuver.
(2) “School bus” includes a multifunction school activity bus.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 923 (H.B. 3190), Sec. 3, eff. September 1, 2007.

Sec. 545.002. OPERATOR. In this chapter, a reference to an operator includes a reference to the vehicle operated by the operator if the reference imposes a duty or provides a limitation on the movement or other operation of that vehicle.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

SUBCHAPTER B. DRIVING ON RIGHT SIDE OF ROADWAY AND PASSING

Sec. 545.051. DRIVING ON RIGHT SIDE OF ROADWAY. (a) An operator on a roadway of sufficient width shall drive on the right half of the roadway, unless:
(1) the operator is passing another vehicle;
(2) an obstruction necessitates moving the vehicle left of the center of the roadway and the operator yields the right-of-way to a vehicle that:
(A) is moving in the proper direction on the unobstructed portion of the roadway; and
(B) is an immediate hazard;
(3) the operator is on a roadway divided into three marked lanes for traffic; or
(4) the operator is on a roadway restricted to one-way traffic.
(b) An operator of a vehicle on a roadway moving more slowly than the normal speed of other vehicles at the time and place under the existing conditions shall drive in the right-hand lane available for vehicles, or as close as practicable to the right-hand curb or edge of the roadway, unless the operator is:
(1) passing another vehicle; or
(2) preparing for a left turn at an intersection or into a private road or driveway.
(c) An operator on a roadway having four or more lanes for moving vehicles and providing for two-way movement of vehicles may not drive left of the center line of the roadway except:
(1) as authorized by an official traffic-control device designating a specified lane to the left side of the center of the roadway for use by a vehicle not otherwise permitted to use the lane;
(2) under the conditions described by Subsection (a)(2); or
(3) in crossing the center line to make a left turn into or out of an alley, private road, or driveway.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.052. DRIVING PAST VEHICLE MOVING IN OPPOSITE DIRECTION. An operator moving in the opposite direction of the movement of another operator shall:
(1) move to or remain to the right; and
(2) on a roadway wide enough for not more than one line of vehicle movement in each direction, give the other operator:
(A) at least one-half of the main traveled portion of the roadway; or
(B) if complying with Paragraph (A) is not possible, as much of the roadway as possible.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.053. PASSING TO THE LEFT; RETURN; BEING PASSED. (a) An operator passing another vehicle:
(1) shall pass to the left of the other vehicle at a safe distance; and
(2) may not move back to the right side of the roadway until safely clear of the passed vehicle.
(b) An operator being passed by another vehicle:
(1) shall, on audible signal, move or remain to the right in favor of the passing vehicle; and
(2) may not accelerate until completely passed by the passing vehicle.
(c) Subsection (b) does not apply when passing to the right is permitted.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.054. PASSING TO THE LEFT: SAFE DISTANCE. (a) An operator may not drive on the left side of the center of the roadway in passing another vehicle unless:
(1) driving on the left side of the center of the roadway is authorized by this subtitle; and
(2) the left side is clearly visible and free of approaching traffic for a distance sufficient to permit passing without interfering with the operation of the passed vehicle or a vehicle approaching from the opposite direction.
(b) An operator passing another vehicle shall return to an authorized lane of travel:
(1) before coming within 200 feet of an approaching vehicle, if a lane authorized for vehicles approaching from the opposite direction is used in passing; or otherwise
(2) as soon as practicable.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.055. PASSING TO THE LEFT: PASSING ZONES. (a) An operator shall obey the directions of a sign or marking in Subsection (c) or (d) if the sign or marking is in place and clearly visible to an ordinarily observant person.
(b) An operator may not drive on the left side of the roadway in a no-passing zone or on the left side of any pavement striping designed to mark a no-passing zone. This subsection does not prohibit a driver from crossing pavement striping, or the center line in a no-passing zone marked by signs only, to make a left turn into or out of an alley or private road or driveway.
(c) The Texas Transportation Commission, on a state highway under the jurisdiction of the commission, may:
(1) determine those portions of the highway where passing or driving to the left of the roadway would be especially hazardous; and
(2) show the beginning and end of each no-passing zone by appropriate signs or markings on the roadway.
(d) A local authority, on a highway under the jurisdiction of the local authority, may:
(1) determine those portions of the highway where passing or driving to the left of the roadway would be especially hazardous; and
(2) show the beginning and end of each no-passing zone by appropriate signs or markings on the roadway.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.056. DRIVING TO LEFT OF CENTER OF ROADWAY: LIMITATIONS OTHER THAN PASSING. (a) An operator may not drive to the left side of the roadway if the operator is:
(1) approaching within 100 feet of an intersection or railroad grade crossing in a municipality;
(2) approaching within 100 feet of an intersection or railroad grade crossing outside a municipality and the intersection or crossing is shown by a sign or marking in accordance with Section 545.055;
(3) approaching within 100 feet of a bridge, viaduct, or tunnel; or
(4) awaiting access to a ferry operated by the Texas Transportation Commission.
(b) The limitations in Subsection (a) do not apply:
(1) on a one-way roadway; or
(2) to an operator turning left into or from an alley or private road or driveway.
(c) The Texas Transportation Commission shall post signs along the approach to a ferry operated by the commission notifying operators that passing is prohibited if there is a standing line of vehicles awaiting access to the ferry.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.057. PASSING TO THE RIGHT. (a) An operator may pass to the right of another vehicle only if conditions permit safely passing to the right and:
(1) the vehicle being passed is making or about to make a left turn; and
(2) the operator is:
(A) on a highway having unobstructed pavement not occupied by parked vehicles and sufficient width for two or more lines of moving vehicles in each direction; or
(B) on a one-way street or on a roadway having traffic restricted to one direction of movement and the roadway is free from obstructions and wide enough for two or more lines of moving vehicles.
(b) An operator may not pass to the right by leaving the main traveled portion of a roadway except as provided by Section 545.058.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.058. DRIVING ON IMPROVED SHOULDER. (a) An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway if that operation is necessary and may be done safely, but only:
(1) to stop, stand, or park;
(2) to accelerate before entering the main traveled lane of traffic;
(3) to decelerate before making a right turn;
(4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn;
(5) to allow another vehicle traveling faster to pass;
(6) as permitted or required by an official traffic-control device; or
(7) to avoid a collision.
(b) An operator may drive on an improved shoulder to the left of the main traveled portion of a divided or limited-access or controlled-access highway if that operation may be done safely, but only:
(1) to slow or stop when the vehicle is disabled and traffic or other circumstances prohibit the safe movement of the vehicle to the shoulder to the right of the main traveled portion of the roadway;
(2) as permitted or required by an official traffic-control device; or
(3) to avoid a collision.
(c) A limitation in this section on driving on an improved shoulder does not apply to:
(1) an authorized emergency vehicle responding to a call;
(2) a police patrol; or
(3) a bicycle.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.059. ONE-WAY ROADWAYS AND ROTARY TRAFFIC ISLANDS. (a) The Texas Transportation Commission may designate a highway or separate roadway under the jurisdiction of the commission for one-way traffic and shall erect appropriate signs giving notice of the designation.
(b) On a roadway that is designated and on which signs are erected for one-way traffic, an operator shall drive only in the direction indicated.
(c) An operator moving around a rotary traffic island shall drive only to the right of the island.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.060. DRIVING ON ROADWAY LANED FOR TRAFFIC. (a) An operator on a roadway divided into two or more clearly marked lanes for traffic:
(1) shall drive as nearly as practical entirely within a single lane; and
(2) may not move from the lane unless that movement can be made safely.
(b) If a roadway is divided into three lanes and provides for two-way movement of traffic, an operator on the roadway may not drive in the center lane except:
(1) if passing another vehicle and the center lane is clear of traffic within a safe distance;
(2) in preparing to make a left turn; or
(3) where the center lane is designated by an official traffic-control device for movement in the direction in which the operator is moving.
(c) Without regard to the center of the roadway, an official traffic-control device may be erected directing slow-moving traffic to use a designated lane or designating lanes to be used by traffic moving in a particular direction.
(d) Official traffic-control devices prohibiting the changing of lanes on sections of roadway may be installed.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.061. DRIVING ON MULTIPLE-LANE ROADWAY. On a roadway divided into three or more lanes and providing for one-way movement of traffic, an operator entering a lane of traffic from a lane to the right shall yield the right-of-way to a vehicle entering the same lane of traffic from a lane to the left.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.062. FOLLOWING DISTANCE. (a) An operator shall, if following another vehicle, maintain an assured clear distance between the two vehicles so that, considering the speed of the vehicles, traffic, and the conditions of the highway, the operator can safely stop without colliding with the preceding vehicle or veering into another vehicle, object, or person on or near the highway.
(b) An operator of a truck or of a motor vehicle drawing another vehicle who is on a roadway outside a business or residential district and who is following another truck or motor vehicle drawing another vehicle shall, if conditions permit, leave sufficient space between the vehicles so that a vehicle passing the operator can safely enter and occupy the space. This subsection does not prohibit a truck or a motor vehicle drawing another vehicle from passing another vehicle.
(c) An operator on a roadway outside a business or residential district driving in a caravan of other vehicles or a motorcade shall allow sufficient space between the operator and the vehicle preceding the operator so that another vehicle can safely enter and occupy the space. This subsection does not apply to a funeral procession.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.063. DRIVING ON DIVIDED HIGHWAY. (a) On a highway having two or more roadways separated by a space, physical barrier, or clearly indicated dividing section constructed to impede vehicular traffic, an operator shall drive on the right roadway unless directed or permitted to use another roadway by an official traffic-control device or police officer.
(b) An operator may not drive over, across, or in a dividing space, physical barrier, or section constructed to impede vehicular traffic except:
(1) through an opening in the physical barrier or dividing section or space; or
(2) at a crossover or intersection established by a public authority.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.064. RESTRICTED ACCESS. An operator may not drive on or from a limited-access or controlled-access roadway except at an entrance or exit that is established by a public authority.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.065. STATE AND LOCAL REGULATION OF LIMITED-ACCESS OR CONTROLLED-ACCESS HIGHWAYS. (a) The Texas Transportation Commission by resolution or order recorded in its minutes may prohibit the use of a limited-access or controlled-access highway under the jurisdiction of the commission by a parade, funeral procession, pedestrian, bicycle, electric bicycle, motor-driven cycle, or nonmotorized traffic.
(b) If the commission adopts a rule under Subsection (a), the commission shall erect and maintain official traffic-control devices on the portions of the limited-access or controlled-access highway to which the rule applies.
(c) A local authority by ordinance may prohibit the use of a limited-access or controlled-access roadway under the jurisdiction of the authority by a parade, funeral procession, pedestrian, bicycle, electric bicycle, motor-driven cycle, or nonmotorized traffic.
(d) If a local authority adopts an ordinance under Subsection (c), the authority shall erect and maintain official traffic-control devices on the portions of the limited-access or controlled-access roadway to which the ordinance applies.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 2001, 77th Leg., ch. 1085, Sec. 7, eff. Sept. 1, 2001.

Sec. 545.0651. RESTRICTION ON USE OF HIGHWAY. (a) In this section:
(1) “Commission” means the Texas Transportation Commission.
(1-a) “Department” means the Texas Department of Transportation.
(2) “Highway” means a public highway that:
(A) is in the designated state highway system;
(B) is designated a controlled access facility; and
(C) has a minimum of three travel lanes, excluding access or frontage roads, in each direction of traffic that may be part of a single roadway or may be separate roadways that are constructed as an upper and lower deck.
(b) The commission by order may restrict, by class of vehicle, through traffic to two or more designated lanes of a highway. If the lanes to be restricted by the commission are located within a municipality, the commission shall consult with the municipality before adopting an order under this section. A municipality by ordinance may restrict, by class of vehicle, through traffic to two or more designated lanes of a highway in the municipality.
(c) An order or ordinance under Subsection (b) must allow a restricted vehicle to use any lane of the highway to pass another vehicle and to enter and exit the highway.
(d) Before adopting an ordinance, a municipality shall submit to the department a description of the proposed restriction. The municipality may not enforce the restrictions unless the department’s executive director or the executive director’s designee has approved the restrictions.
(e) Department approval under Subsection (d) must:
(1) be based on a traffic study performed by the department to evaluate the effect of the proposed restriction; and
(2) to the greatest extent practicable, ensure a systems approach to preclude the designation of inconsistent lane restrictions among adjacent municipalities.
(f) The department’s executive director or the executive director’s designee may suspend or rescind approval of any restrictions approved under Subsection (d) for one or more of the following reasons:
(1) a change in pavement conditions;
(2) a change in traffic conditions;
(3) a geometric change in roadway configuration;
(4) construction or maintenance activity; or
(5) emergency or incident management.
(g) The department shall erect and maintain official traffic control devices necessary to implement and enforce an order adopted or an ordinance adopted and approved under this section. A restriction approved under this section may not be enforced until the appropriate traffic control devices are in place.

Added by Acts 1997, 75th Leg., ch. 384, Sec. 1, eff. May 28, 1997. Amended by Acts 2003, 78th Leg., ch. 1049, Sec. 9, eff. June 20, 2003.

Sec. 545.0652. COUNTY RESTRICTION ON USE OF HIGHWAY. (a) In this section:
(1) “Department” means the Texas Department of Transportation.
(2) “Highway” means a public roadway that:
(A) is in the designated state highway system;
(B) is designated a controlled access facility; and
(C) has a minimum of three travel lanes, excluding access or frontage roads, in each direction of traffic.
(b) A county commissioners court by order may restrict, by class of vehicle, through traffic to two or more designated lanes of a highway located in the county and outside the jurisdiction of a municipality.
(c) An order under Subsection (b) must allow a restricted vehicle to use any lane of the highway to pass another vehicle and to enter and exit the highway.
(d) Before issuing an order under this section, the commissioners court shall submit to the department a description of the proposed restriction. The commissioners court may not enforce the restrictions unless:
(1) the department’s executive director or the executive director’s designee has approved the restrictions; and
(2) the appropriate traffic-control devices are in place.
(e) Department approval under Subsection (d) must to the greatest extent practicable ensure a systems approach to preclude the designation of inconsistent lane restrictions among adjacent counties or municipalities.
(f) The department’s executive director or the executive director’s designee may suspend or rescind approval under this section for one or more of the following reasons:
(1) a change in pavement conditions;
(2) a change in traffic conditions;
(3) a geometric change in roadway configuration;
(4) construction or maintenance activity; or
(5) emergency or incident management.
(g) The department shall erect and maintain official traffic-control devices necessary to implement and enforce an order issued and approved under this section.

Added by Acts 2003, 78th Leg., ch. 846, Sec. 1, eff. Sept. 1, 2003.

Sec. 545.066. PASSING A SCHOOL BUS; OFFENSE. (a) An operator on a highway, when approaching from either direction a school bus stopped on the highway to receive or discharge a student:
(1) shall stop before reaching the school bus when the bus is operating a visual signal as required by Section 547.701; and
(2) may not proceed until:
(A) the school bus resumes motion;
(B) the operator is signaled by the bus driver to proceed; or
(C) the visual signal is no longer actuated.
(b) An operator on a highway having separate roadways is not required to stop:
(1) for a school bus that is on a different roadway; or
(2) if on a controlled-access highway, for a school bus that is stopped:
(A) in a loading zone that is a part of or adjacent to the highway; and
(B) where pedestrians are not permitted to cross the roadway.
(c) An offense under this section is a misdemeanor punishable by a fine of not less than $500 or more than $1,250, except that the offense is:
(1) a misdemeanor punishable by a fine of not less than $1,000 or more than $2,000 if the person is convicted of a second or subsequent offense under this section committed within five years of the date on which the most recent preceding offense was committed;
(2) a Class A misdemeanor if the person causes serious bodily injury to another; or
(3) a state jail felony if the person has been previously convicted under Subdivision (2).
(d) The court may order that the driver’s license of a person convicted of a second or subsequent offense under this section be suspended for not longer than six months beginning on the date of conviction. In this subsection, “driver’s license” has the meaning assigned by Chapter 521.
(e) If a person does not pay the previously assessed fine or costs on a conviction under this section, or is determined by the court to have insufficient resources or income to pay a fine or costs on a conviction under this section, the court may order the person to perform community service. The court shall set the number of hours of service under this subsection.
(f) For the purposes of this section:
(1) a highway is considered to have separate roadways only if the highway has roadways separated by an intervening space on which operation of vehicles is not permitted, a physical barrier, or a clearly indicated dividing section constructed to impede vehicular traffic; and
(2) a highway is not considered to have separate roadways if the highway has roadways separated only by a left turn lane.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1438, Sec. 9, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 1325, Sec. 19.06(a), eff. Sept. 1, 2003.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 661 (H.B. 1174), Sec. 1, eff. September 1, 2013.

SUBCHAPTER C. TURNING AND SIGNALS FOR STOPPING AND TURNING

Sec. 545.101. TURNING AT INTERSECTION. (a) To make a right turn at an intersection, an operator shall make both the approach and the turn as closely as practicable to the right-hand curb or edge of the roadway.
(b) To make a left turn at an intersection, an operator shall:
(1) approach the intersection in the extreme left-hand lane lawfully available to a vehicle moving in the direction of the vehicle; and
(2) after entering the intersection, turn left, leaving the intersection so as to arrive in a lane lawfully available to traffic moving in the direction of the vehicle on the roadway being entered.
(c) On a street or roadway designated for two-way traffic, the operator turning left shall, to the extent practicable, turn in the portion of the intersection to the left of the center of the intersection.
(d) To turn left, an operator who is approaching an intersection having a roadway designated for one-way traffic and for which signs are posted from a roadway designated for one-way traffic and for which signs are posted shall make the turn as closely as practicable to the left-hand curb or edge of the roadway.
(e) The Texas Transportation Commission or a local authority, with respect to a highway in its jurisdiction, may:
(1) authorize the placement of an official traffic-control device in or adjacent to an intersection; and
(2) require a course different from that specified in this section for movement by vehicles turning at an intersection.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.102. TURNING ON CURVE OR CREST OF GRADE. An operator may not turn the vehicle to move in the opposite direction when approaching a curve or the crest of a grade if the vehicle is not visible to the operator of another vehicle approaching from either direction within 500 feet.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.103. SAFELY TURNING. An operator may not turn the vehicle to enter a private road or driveway, otherwise turn the vehicle from a direct course, or move right or left on a roadway unless movement can be made safely.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.104. SIGNALING TURNS; USE OF TURN SIGNALS. (a) An operator shall use the signal authorized by Section 545.106 to indicate an intention to turn, change lanes, or start from a parked position.
(b) An operator intending to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of movement of the vehicle before the turn.
(c) An operator may not light the signals on only one side of the vehicle on a parked or disabled vehicle or use the signals as a courtesy or “do pass” signal to the operator of another vehicle approaching from the rear.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.105. SIGNALING STOPS. An operator may not stop or suddenly decrease the speed of the vehicle without first giving a stop signal as provided by this subchapter to the operator of a vehicle immediately to the rear when there is an opportunity to give the signal.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.106. SIGNALS BY HAND AND ARM OR BY SIGNAL LAMP. (a) Except as provided by Subsection (b), an operator required to give a stop or turn signal shall do so by:
(1) using the hand and arm; or
(2) lighting signal lamps approved by the department.
(b) A motor vehicle in use on a highway shall be equipped with signal lamps, and the required signal shall be given by lighting the lamps, if:
(1) the distance from the center of the top of the steering post to the left outside limit of the body, cab, or load of the motor vehicle is more than two feet; or
(2) the distance from the center of the top of the steering post to the rear limit of the body or load, including the body or load of a combination of vehicles, is more than 14 feet.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.107. METHOD OF GIVING HAND AND ARM SIGNALS. An operator who is permitted to give a hand and arm signal shall give the signal from the left side of the vehicle as follows:
(1) to make a left turn signal, extend hand and arm horizontally;
(2) to make a right turn signal, extend hand and arm upward, except that a bicycle operator may signal from the right side of the vehicle with the hand and arm extended horizontally; and
(3) to stop or decrease speed, extend hand and arm downward.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

SUBCHAPTER D. RIGHT-OF-WAY

Sec. 545.151. VEHICLE APPROACHING OR ENTERING INTERSECTION. (a) An operator approaching an intersection:
(1) shall stop, yield, and grant immediate use of the intersection:
(A) in obedience to an official traffic-control device, including a stop sign or yield right-of-way sign; or
(B) if a traffic-control signal is present but does not display an indication in any of the signal heads; and
(2) after stopping, may proceed when the intersection can be safely entered without interference or collision with traffic using a different street or roadway.
(b) An operator on a single-lane or two-lane street or roadway who approaches an intersection that is not controlled by an official traffic-control device and that is located on a divided highway or on a street or roadway divided into three or more marked traffic lanes:
(1) shall stop, yield, and grant immediate use of the intersection to a vehicle on the other street or roadway that is within the intersection or approaching the intersection in such proximity as to be a hazard; and
(2) after stopping, may proceed when the intersection can be safely entered without interference or collision with traffic using a different street or roadway.
(c) An operator on an unpaved street or roadway approaching an intersection of a paved street or roadway:
(1) shall stop, yield, and grant immediate use of the intersection to a vehicle on the paved street or roadway that is within the intersection or approaching the intersection in such proximity as to be a hazard; and
(2) after stopping, may proceed when the intersection can be safely entered without interference or collision with traffic using the paved street or roadway.
(d) Except as provided in Subsection (e), an operator approaching an intersection of a street or roadway that is not controlled by an official traffic-control device:
(1) shall stop, yield, and grant immediate use of the intersection to a vehicle that has entered the intersection from the operator’s right or is approaching the intersection from the operator’s right in a proximity that is a hazard; and
(2) after stopping, may proceed when the intersection can be safely entered without interference or collision with traffic using a different street or roadway.
(e) An operator approaching an intersection of a street or roadway from a street or roadway that terminates at the intersection and that is not controlled by an official traffic-control device or controlled as provided by Subsection (b) or (c):
(1) shall stop, yield, and grant immediate use of the intersection to another vehicle that has entered the intersection from the other street or roadway or is approaching the intersection on the other street or roadway in a proximity that is a hazard; and
(2) after stopping, may proceed when the intersection can be safely entered without interference or collision with the traffic using the other street or roadway.
(f) An operator who is required by this section to stop and yield the right-of-way at an intersection to another vehicle and who is involved in a collision or interferes with other traffic at the intersection to whom right-of-way is to be given is presumed not to have yielded the right-of-way.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 2003, 78th Leg., ch. 1325, Sec. 19.05, eff. Sept. 1, 2003.

Sec. 545.152. VEHICLE TURNING LEFT. To turn left at an intersection or into an alley or private road or driveway, an operator shall yield the right-of-way to a vehicle that is approaching from the opposite direction and that is in the intersection or in such proximity to the intersection as to be an immediate hazard.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.153. VEHICLE ENTERING STOP OR YIELD INTERSECTION. (a) Preferential right-of-way at an intersection may be indicated by a stop sign or yield sign as authorized in Section 544.003.
(b) Unless directed to proceed by a police officer or official traffic-control device, an operator approaching an intersection on a roadway controlled by a stop sign, after stopping as required by Section 544.010, shall yield the right-of-way to a vehicle that has entered the intersection from another highway or that is approaching so closely as to be an immediate hazard to the operator’s movement in or across the intersection.
(c) An operator approaching an intersection on a roadway controlled by a yield sign shall:
(1) slow to a speed that is reasonable under the existing conditions; and
(2) yield the right-of-way to a vehicle in the intersection or approaching on another highway so closely as to be an immediate hazard to the operator’s movement in or across the intersection.
(d) If an operator is required by Subsection (c) to yield and is involved in a collision with a vehicle in an intersection after the operator drove past a yield sign without stopping, the collision is prima facie evidence that the operator failed to yield the right-of-way.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.154. VEHICLE ENTERING OR LEAVING LIMITED-ACCESS OR CONTROLLED-ACCESS HIGHWAY. An operator on an access or feeder road of a limited-access or controlled-access highway shall yield the right-of-way to a vehicle entering or about to enter the access or feeder road from the highway or leaving or about to leave the access or feeder road to enter the highway.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.155. VEHICLE ENTERING HIGHWAY FROM PRIVATE ROAD OR DRIVEWAY. An operator about to enter or cross a highway from an alley, building, or private road or driveway shall yield the right-of-way to a vehicle approaching on the highway to be entered.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.156. VEHICLE APPROACHED BY AUTHORIZED EMERGENCY VEHICLE. (a) On the immediate approach of an authorized emergency vehicle using audible and visual signals that meet the requirements of Sections 547.305 and 547.702, or of a police vehicle lawfully using only an audible signal, an operator, unless otherwise directed by a police officer, shall:
(1) yield the right-of-way;
(2) immediately drive to a position parallel to and as close as possible to the right-hand edge or curb of the roadway clear of any intersection; and
(3) stop and remain standing until the authorized emergency vehicle has passed.
(b) This section does not exempt the operator of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.157. PASSING CERTAIN VEHICLES. (a) This section applies only to the following vehicles:
(1) a stationary authorized emergency vehicle using visual signals that meet the requirements of Sections 547.305 and 547.702;
(2) a stationary tow truck using equipment authorized by Section 547.305(d); and
(3) a Texas Department of Transportation vehicle not separated from the roadway by a traffic control channelizing device and using visual signals that comply with the standards and specifications adopted under Section 547.105.
(b) On approaching a vehicle described by Subsection (a), an operator, unless otherwise directed by a police officer, shall:
(1) vacate the lane closest to the vehicle when driving on a highway with two or more lanes traveling in the direction of the vehicle; or
(2) slow to a speed not to exceed:
(A) 20 miles per hour less than the posted speed limit when the posted speed limit is 25 miles per hour or more; or
(B) five miles per hour when the posted speed limit is less than 25 miles per hour.
(c) A violation of this section is:
(1) a misdemeanor punishable under Section 542.401;
(2) a misdemeanor punishable by a fine of $500 if the violation results in property damage; or
(3) a Class B misdemeanor if the violation results in bodily injury.
(d) If conduct constituting an offense under this section also constitutes an offense under another section of this code or the Penal Code, the actor may be prosecuted under either section or under both sections.
(e) In this section:
(1) “Tow truck” means a vehicle that:
(A) has been issued a permit under Subchapter C, Chapter 2308, Occupations Code; and
(B) is operated by a person licensed under Subchapter D, Chapter 2308, Occupations Code.
(2) “Traffic control channelizing device” means equipment used to warn and alert drivers of conditions created by work activities in or near the traveled way, to protect workers in a temporary traffic control zone, and to guide drivers and pedestrians safely. The term includes a traffic cone, tubular marker, vertical panel, drum, barricade, temporary raised island, concrete or cable barrier, guardrail, or channelizer.

Added by Acts 2003, 78th Leg., ch. 327, Sec. 2, eff. Sept. 1, 2003.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 229 (H.B. 378), Sec. 1, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 6 (S.B. 510), Sec. 1, eff. September 1, 2013.

SUBCHAPTER E. STREETCARS

Sec. 545.201. PASSING STREETCAR TO LEFT. (a) An operator may not pass to the left or drive on the left side of a streetcar moving in the same direction, even if the streetcar is temporarily at rest, unless the operator:
(1) is directed to do so by a police officer;
(2) is on a one-way street; or
(3) is on a street on which the location of the tracks prevents compliance with this section.
(b) An operator when lawfully passing to the left of a streetcar that has stopped to receive or discharge a passenger:
(1) shall reduce speed;
(2) may proceed only on exercising due caution for pedestrians; and
(3) shall accord a pedestrian the right-of-way as required by this subtitle.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.202. PASSING STREETCAR TO RIGHT. (a) An operator passing to the right of a streetcar stopped or about to stop to receive or discharge a passenger shall:
(1) stop the vehicle at least five feet to the rear of the nearest running board or door of the streetcar; and
(2) remain standing until all passengers have entered the streetcar or, on leaving, have reached a place of safety.
(b) An operator is not required to stop before passing a streetcar to the right if a safety zone has been established and may proceed past the streetcar at a reasonable speed and with due caution for the safety of pedestrians.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.203. DRIVING ON STREETCAR TRACKS. (a) An operator on a streetcar track in front of a streetcar shall move the operator’s vehicle off the track as soon as possible after a signal from the operator of the streetcar.
(b) An operator may not drive on or cross a streetcar track in an intersection in front of a streetcar crossing the intersection.
(c) An operator who is passing a streetcar may not turn in front of the streetcar so as to interfere with or impede its movement.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.204. STREETCAR APPROACHED BY AUTHORIZED EMERGENCY VEHICLE. (a) On the immediate approach of an authorized emergency vehicle using audible and visual signals that meet the requirements of Sections 547.305 and 547.702, or of a police vehicle lawfully using only an audible signal, the operator of a streetcar shall immediately stop the streetcar clear of any intersection and remain there until the authorized emergency vehicle has passed, unless otherwise directed by a police officer.
(b) This section does not exempt the operator of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.205. CROSSING FIRE HOSE. An operator of a streetcar may not, without the consent of the fire department official in command, drive over an unprotected hose of a fire department when the hose is on a streetcar track and intended for use at a fire or alarm of fire.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.206. OBSTRUCTION OF OPERATOR’S VIEW OR DRIVING MECHANISM. A passenger in a streetcar may not ride in a position that interferes with the operator’s view ahead or to the side or with control over the driving mechanism of the streetcar.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

SUBCHAPTER F. SPECIAL STOPS AND SPEED RESTRICTIONS

Sec. 545.251. OBEDIENCE TO SIGNAL INDICATING APPROACH OF TRAIN. (a) An operator approaching a railroad grade crossing shall stop not closer than 15 feet or farther than 50 feet from the nearest rail if:
(1) a clearly visible railroad signal warns of the approach of a railroad train;
(2) a crossing gate is lowered, or a flagger warns of the approach or passage of a train;
(3) a railroad engine approaching within approximately 1,500 feet of the highway crossing emits a signal audible from that distance and the engine is an immediate hazard because of its speed or proximity to the crossing;
(4) an approaching railroad train is plainly visible to the operator and is in hazardous proximity to the crossing; or
(5) the operator is required to stop by:
(A) other law;
(B) a rule adopted under a statute;
(C) an official traffic-control device; or
(D) a traffic-control signal.
(b) An operator of a vehicle required by Subsection (a) to stop shall remain stopped until permitted to proceed and it is safe to proceed.
(c) An operator of a vehicle who approaches a railroad grade crossing equipped with railroad crossbuck signs without automatic, electric, or mechanical signal devices, crossing gates, or a flagger warning of the approach or passage of a train shall yield the right-of-way to a train in hazardous proximity to the crossing, and proceed at a speed that is reasonable for the existing conditions. If required for safety, the operator shall stop at a clearly marked stop line before the grade crossing or, if no stop line exists, not closer than 15 feet or farther than 50 feet from the nearest rail.
(d) An operator commits an offense if the operator drives around, under, or through a crossing gate or a barrier at a railroad crossing while the gate or barrier is closed, being closed, or being opened.
(e) In a prosecution under this section, proof that at the time of the offense a train was in hazardous proximity to the crossing and that the train was plainly visible to the operator is prima facie evidence that it was not safe for the operator to proceed.
(f) An offense under this section is punishable by a fine of not less than $50 or more than $200.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.107(a), eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1097, Sec. 1, eff. Sept. 1, 1997.

Sec. 545.252. ALL VEHICLES TO STOP AT CERTAIN RAILROAD GRADE CROSSINGS. (a) The Texas Department of Transportation or a local authority, with respect to a highway in its jurisdiction, may:
(1) designate a railroad grade crossing as particularly dangerous; and
(2) erect a stop sign or other official traffic-control device at the grade crossing.
(b) An operator approaching a stop sign or other official traffic-control device that requires a stop and that is erected under Subsection (a) shall stop not closer than 15 feet or farther than 50 feet from the nearest rail of the railroad and may proceed only with due care.
(c) The costs of installing and maintaining a mechanically operated grade crossing safety device, gate, sign, or signal erected under this section shall be apportioned and paid on the same percentage ratio and in the same proportionate amounts by this state and all participating political subdivisions of this state as costs are apportioned and paid between the state and the United States.
(d) An offense under this section is punishable by a fine of not less than $50 or more than $200.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.107(b), eff. Sept. 1, 1997.

Sec. 545.253. BUSES TO STOP AT ALL RAILROAD GRADE CROSSINGS. (a) Except as provided by Subsection (c), the operator of a motor bus carrying passengers for hire, before crossing a railroad grade crossing:
(1) shall stop the vehicle not closer than 15 feet or farther than 50 feet from the nearest rail of the railroad;
(2) while stopped, shall listen and look in both directions along the track for an approaching train and signals indicating the approach of a train; and
(3) may not proceed until it is safe to do so.
(b) After stopping as required by Subsection (a), an operator described by Subsection (a) shall proceed without manually shifting gears while crossing the track.
(c) A vehicle is not required to stop at the crossing if a police officer or a traffic-control signal directs traffic to proceed.
(d) This section does not apply at a railway grade crossing in a business or residence district.
(e) An offense under this section is punishable by a fine of not less than $50 or more than $200.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.107(c), eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1061, Sec. 15, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1438, Sec. 10, eff. Sept. 1, 1997.

Sec. 545.2535. SCHOOL BUSES TO STOP AT ALL RAILROAD GRADE CROSSINGS. (a) Except as provided by Subsection (c), the operator of a school bus, before crossing a track at a railroad grade crossing:
(1) shall stop the vehicle not closer than 15 feet or farther than 50 feet from the track;
(2) while stopped, shall listen and look in both directions along the track for an approaching train and signals indicating the approach of a train; and
(3) may not proceed until it is safe to do so.
(b) After stopping as required by Subsection (a), the operator may proceed in a gear that permits the vehicle to complete the crossing without a change of gears. The operator may not shift gears while crossing the track.
(c) An operator is not required to stop at:
(1) an abandoned railroad grade crossing that is marked with a sign reading “tracks out of service”; or
(2) an industrial or spur line railroad grade crossing that is marked with a sign reading “exempt.”
(d) A sign under Subsection (c) may be erected only by or with the consent of the appropriate state or local governmental official.

Added by Acts 1997, 75th Leg., ch. 1061, Sec. 16, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1438, Sec. 11, eff. Sept. 1, 1997.

Sec. 545.254. VEHICLES CARRYING EXPLOSIVE SUBSTANCES OR FLAMMABLE LIQUIDS. (a) Before crossing a railroad grade crossing, an operator of a vehicle that has an explosive substance or flammable liquid as the vehicle’s principal cargo and that is moving at a speed of more than 20 miles per hour:
(1) shall reduce the speed of the vehicle to 20 miles per hour or less before coming within 200 feet of the nearest rail of the railroad;
(2) shall listen and look in both directions along the track for an approaching train and for signals indicating the approach of a train; and
(3) may not proceed until the operator determines that the course is clear.
(b) The operator of a vehicle that has an explosive substance or flammable liquid as the vehicle’s principal cargo, before crossing a railroad grade crossing on a highway in a municipality:
(1) shall stop the vehicle not closer than 15 feet or farther than 50 feet from the nearest rail of the railroad;
(2) while stopped, shall listen and look in both directions along the track for an approaching train and for signals indicating the approach of a train; and
(3) may not proceed until the operator determines that the course is clear.
(c) Subsections (a) and (b) do not apply:
(1) if a police officer, crossing flagger, or traffic-control signal directs traffic to proceed;
(2) where a railroad flashing signal is installed and does not indicate an approaching train;
(3) to an abandoned or exempted grade crossing that is clearly marked by or with the consent of the state, if the markings can be read from the operator’s location;
(4) at a streetcar crossing in a business or residential district of a municipality; or
(5) to a railroad track used exclusively for industrial switching purposes in a business district.
(d) This section does not exempt the operator from compliance with Section 545.251 or 545.252.
(e) An offense under this section is punishable by a fine of not less than $50 or more than $200.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.107(d), eff. Sept. 1, 1997.

Sec. 545.255. MOVING HEAVY EQUIPMENT AT RAILROAD GRADE CROSSINGS. (a) This section applies only to:
(1) a crawler-type tractor, steam shovel, derrick, or roller; and
(2) any other equipment or structure with:
(A) a normal operating speed of 10 miles per hour or less; or
(B) a vertical body or load clearance of less than one-half inch per foot of the distance between two adjacent axles or less than nine inches measured above the level surface of a roadway.
(b) An operator of a vehicle or equipment may not move on or across a track at a railroad grade crossing unless the operator has given notice to a station agent of the railroad and given the railroad reasonable time to provide proper protection at the crossing.
(c) To move a vehicle or equipment on or across a track at a railroad grade crossing, the operator:
(1) shall stop the vehicle or equipment not closer than 15 feet or farther than 50 feet from the nearest rail of the railroad;
(2) while stopped, shall listen and look in both directions along the track for an approaching train and for signals indicating the approach of a train; and
(3) may not proceed until it is safe to cross the track.
(d) An operator of a vehicle or equipment may not cross a railroad grade crossing when warning of the immediate approach of a railroad car or train is given by automatic signal, crossing gates, a flagger, or otherwise. If a flagger is provided by the railroad, the operator shall move the vehicle or equipment over the crossing at the flagger’s direction.
(e) An offense under this section is punishable by a fine of not less than $50 or more than $200.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.107(e), eff. Sept. 1, 1997.

Sec. 545.2555. REPORT AND INVESTIGATION OF CERTAIN RAILROAD CROSSING VIOLATIONS. (a) A person who on site observes a violation of Section 545.251, 545.252, 545.253, 545.254, or 545.255 may file a report of the violation if the person:
(1) is an on-engine employee of a railroad; and
(2) observes the violation while on a moving engine.
(b) A report under this section must:
(1) be made:
(A) on a form approved by the department; and
(B) not later than 72 hours after the violation;
(2) be filed with:
(A) an office of the department located in the county in which the violation occurred;
(B) the sheriff of the county in which the violation occurred, if the violation occurred in the unincorporated area of the county; or
(C) the police department of a municipality, if the violation occurred in the municipality; and
(3) contain, in addition, to any other required information:
(A) the date, time, and location of the violation;
(B) the license plate number and a description of the vehicle involved in the violation;
(C) a description of the operator of the vehicle involved in the violation; and
(D) the name, address, and telephone number of the person filing the report.
(c) A peace officer may:
(1) before the seventh day after the date a report under this section is filed, initiate an investigation of the alleged violation; and
(2) request the owner of the reported vehicle, as shown by the vehicle registration records of the Texas Department of Transportation, to disclose the name and address of the individual operating that vehicle at the time of the violation alleged in the report.
(d) Unless the owner of the reported vehicle believes that to provide the peace officer with the name and address of the individual operating the vehicle at the time of the violation alleged would incriminate the owner, the owner shall, to the best of the owner’s ability, disclose that individual’s name and address.
(e) An investigating peace officer who has probable cause to believe that a charge against an individual for a violation of Section 545.251, 545.252, 545.253, 545.254, or 545.255 is justified may:
(1) prepare a written notice to appear in court that complies with Sections 543.003, 543.006, and 543.007; and
(2) deliver the notice to the individual named in the notice in person or by certified mail.

Added by Acts 1997, 75th Leg., ch. 165, Sec. 30.108(a), eff. Sept. 1, 1997.

Sec. 545.256. EMERGING FROM AN ALLEY, DRIVEWAY, OR BUILDING. An operator emerging from an alley, driveway, or building in a business or residence district shall:
(1) stop the vehicle before moving on a sidewalk or the sidewalk area extending across an alley or driveway;
(2) yield the right-of-way to a pedestrian to avoid collision; and
(3) on entering the roadway, yield the right-of-way to an approaching vehicle.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

SUBCHAPTER G. STOPPING, STANDING, AND PARKING

Sec. 545.301. STOPPING, STANDING, OR PARKING OUTSIDE A BUSINESS OR RESIDENCE DISTRICT. (a) An operator may not stop, park, or leave standing an attended or unattended vehicle on the main traveled part of a highway outside a business or residence district unless:
(1) stopping, parking, or leaving the vehicle off the main traveled part of the highway is not practicable;
(2) a width of highway beside the vehicle is unobstructed and open for the passage of other vehicles; and
(3) the vehicle is in clear view for at least 200 feet in each direction on the highway.
(b) This section does not apply to an operator of:
(1) a vehicle that is disabled while on the paved or main traveled part of a highway if it is impossible to avoid stopping and temporarily leaving the vehicle on the highway;
(2) a vehicle used exclusively to transport solid, semisolid, or liquid waste operated at the time in connection with the removal or transportation of solid, semisolid, or liquid waste from a location adjacent to the highway; or
(3) a tow truck, as defined by Section 545.157(e), that is performing towing duties under Chapter 2308, Occupations Code.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 782 (S.B. 1093), Sec. 3, eff. September 1, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 229 (H.B. 378), Sec. 2, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 6 (S.B. 510), Sec. 2, eff. September 1, 2013.

Sec. 545.302. STOPPING, STANDING, OR PARKING PROHIBITED IN CERTAIN PLACES. (a) An operator may not stop, stand, or park a vehicle:
(1) on the roadway side of a vehicle stopped or parked at the edge or curb of a street;
(2) on a sidewalk;
(3) in an intersection;
(4) on a crosswalk;
(5) between a safety zone and the adjacent curb or within 30 feet of a place on the curb immediately opposite the ends of a safety zone, unless the governing body of a municipality designates a different length by signs or markings;
(6) alongside or opposite a street excavation or obstruction if stopping, standing, or parking the vehicle would obstruct traffic;
(7) on a bridge or other elevated structure on a highway or in a highway tunnel;
(8) on a railroad track; or
(9) where an official sign prohibits stopping.
(b) An operator may not, except momentarily to pick up or discharge a passenger, stand or park an occupied or unoccupied vehicle:
(1) in front of a public or private driveway;
(2) within 15 feet of a fire hydrant;
(3) within 20 feet of a crosswalk at an intersection;
(4) within 30 feet on the approach to a flashing signal, stop sign, yield sign, or traffic-control signal located at the side of a roadway;
(5) within 20 feet of the driveway entrance to a fire station and on the side of a street opposite the entrance to a fire station within 75 feet of the entrance, if the entrance is properly marked with a sign; or
(6) where an official sign prohibits standing.
(c) An operator may not, except temporarily to load or unload merchandise or passengers, park an occupied or unoccupied vehicle:
(1) within 50 feet of the nearest rail of a railroad crossing; or
(2) where an official sign prohibits parking.
(d) A person may stop, stand, or park a bicycle on a sidewalk if the bicycle does not impede the normal and reasonable movement of pedestrian or other traffic on the sidewalk.
(e) A municipality may adopt an ordinance exempting a private vehicle operated by an elevator constructor responding to an elevator emergency from Subsections (a)(1), (a)(5), (a)(6), (a)(9), (b), and (c).
(f) Subsections (a), (b), and (c) do not apply if the avoidance of conflict with other traffic is necessary or if the operator is complying with the law or the directions of a police officer or official traffic-control device.
(g) If the governing body of a municipality determines that it is necessary to improve the economic development of the municipality’s central business district and that it will not adversely affect public safety, the governing body may adopt an ordinance regulating the standing, stopping, or parking of a vehicle at a place described by Subsection (a)(1), other than a road or highway in the state highway system, in the central business district of the municipality as defined in the ordinance. To the extent of any conflict between the ordinance and Subsection (a)(1), the ordinance controls.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. 814, Sec. 1, eff. June 18, 1999.

Sec. 545.303. ADDITIONAL PARKING REGULATIONS. (a) An operator who stops or parks on a two-way roadway shall do so with the right-hand wheels of the vehicle parallel to and within 18 inches of the right-hand curb or edge of the roadway.
(b) An operator who stops or parks on a one-way roadway shall stop or park the vehicle parallel to the curb or edge of the roadway in the direction of authorized traffic movement with the right-hand wheels within 18 inches of the right-hand curb or edge of the roadway or the left-hand wheels within 18 inches of the left-hand curb or edge of the roadway. This subsection does not apply where a local ordinance otherwise regulates stopping or parking on the one-way roadway.
(c) A local authority by ordinance may permit angle parking on a roadway. This subsection does not apply to a federal-aid or state highway unless the director of the Texas Department of Transportation determines that the roadway is wide enough to permit angle parking without interfering with the free movement of traffic.
(d) The Texas Department of Transportation, on a highway under the jurisdiction of that department, may place signs prohibiting or restricting the stopping, standing, or parking of a vehicle on the highway where the director of the Texas Department of Transportation determines that stopping, standing, or parking is dangerous to, or would unduly interfere with, the free movement of traffic on the highway.
(e) To the extent of any conflict between Subsection (a) or (b) and a municipal ordinance adopted under Section 545.302(g), the ordinance controls.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. 814, Sec. 2, eff. June 18, 1999.

Sec. 545.304. MOVING THE VEHICLE OF ANOTHER; UNLAWFUL PARKING. A person may not move a vehicle that is not lawfully under the person’s control:
(1) into an area where a vehicle is prohibited under Section 545.302; or
(2) away from a curb a distance that is unlawful under Section 545.303.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.305. REMOVAL OF UNLAWFULLY STOPPED VEHICLE. (a) A peace officer listed under Article 2.12, Code of Criminal Procedure, or a license and weight inspector of the department may remove or require the operator or a person in charge of a vehicle to move a vehicle from a highway if the vehicle:
(1) is unattended on a bridge, viaduct, or causeway or in a tube or tunnel and the vehicle is obstructing traffic;
(2) is unlawfully parked and blocking the entrance to a private driveway;
(3) has been reported as stolen;
(4) is identified as having been stolen in a warrant issued on the filing of a complaint;
(5) is unattended and the officer has reasonable grounds to believe that the vehicle has been abandoned for longer than 48 hours;
(6) is disabled so that normal operation is impossible or impractical and the owner or person in charge of the vehicle is:
(A) incapacitated and unable to provide for the vehicle’s removal or custody; or
(B) not in the immediate vicinity of the vehicle;
(7) is disabled so that normal operation is impossible or impractical and the owner or person in charge of the vehicle does not designate a particular towing or storage company;
(8) is operated by a person an officer arrests for an alleged offense and the officer is required by law to take the person into custody; or
(9) is, in the opinion of the officer, a hazard, interferes with a normal function of a governmental agency, or because of a catastrophe, emergency, or unusual circumstance is imperiled.
(b) An officer acting under Subsection (a) may require that the vehicle be taken to:
(1) the nearest garage or other place of safety;
(2) a garage designated or maintained by the governmental agency that employs the officer; or
(3) a position off the paved or main traveled part of the highway.
(c) A law enforcement agency other than the department that removes an abandoned vehicle in an unincorporated area shall notify the sheriff.
(d) The owner of a vehicle that is removed or stored under this section is liable for all reasonable towing and storage fees incurred.
(e) In this section:
(1) “Towing company” means an individual, corporation, partnership, or other association engaged in the business of towing vehicles on a highway for compensation or with the expectation of compensation for the towing or storage of the vehicles and includes the owner, operator, employee, or agent of a towing company.
(2) “Storage company” means an individual, corporation, partnership, or other association engaged in the business of storing or repairing vehicles for compensation or with the expectation of compensation for the storage or repair of vehicles and includes the owner, operator, employee, or agent of a storage company.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.3051. REMOVAL OF PERSONAL PROPERTY FROM ROADWAY OR RIGHT-OF-WAY. (a) In this section:
(1) “Authority” means:
(A) a metropolitan rapid transit authority operating under Chapter 451; or
(B) a regional transportation authority operating under Chapter 452.
(2) “Law enforcement agency” means:
(A) the department;
(B) the police department of a municipality;
(C) the sheriff’s office of a county; or
(D) a constable’s office of a county.
(3) “Personal property” means:
(A) a vehicle described by Section 545.305;
(B) spilled cargo;
(C) a hazardous material as defined by 49 U.S.C. Section 5102 and its subsequent amendments; or
(D) a hazardous substance as defined by Section 26.263, Water Code.
(b) An authority or a law enforcement agency may remove personal property from a roadway or right-of-way if the authority or law enforcement agency determines that the property blocks the roadway or endangers public safety.
(c) Personal property may be removed under this section without the consent of the owner or carrier of the property.
(d) The owner and any carrier of personal property removed under this section shall reimburse the authority or law enforcement agency for any reasonable cost of removal and disposition of the property.
(e) Notwithstanding any other provision of law, an authority or a law enforcement agency is not liable for:
(1) any damage to personal property removed from a roadway or right-of-way under this section, unless the removal is carried out recklessly or in a grossly negligent manner; or
(2) any damage resulting from the failure to exercise the authority granted by this section.

Added by Acts 2003, 78th Leg., ch. 803, Sec. 1, eff. June 20, 2003.

Sec. 545.306. REGULATION OF TOWING COMPANIES IN CERTAIN COUNTIES. (a) The commissioners court of a county with a population of 3.3 million or more shall by ordinance provide for the licensing of or the granting of a permit to a person to remove or store a vehicle authorized by Section 545.305 to be removed in an unincorporated area of the county. The ordinance must include rules to ensure the protection of the public and the safe and efficient operation of towing and storage services in the county and may not regulate or restrict the use of lighting equipment more than the extent allowed by state and federal law. The sheriff shall determine the rules included in the ordinance with the review and consent of the commissioners court.
(b) The commissioners court shall set the fee for the license or permit in an amount that reasonably offsets the costs of enforcing the ordinance. The commissioners court shall use each license or permit fee to pay salaries and expenses of the sheriff’s office for conducting inspections to determine compliance with the ordinance and laws relating to dealers in scrap metal and salvage.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 2001, 77th Leg., ch. 669, Sec. 143, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1034, Sec. 3, eff. Sept. 1, 2003.

Sec. 545.307. OVERNIGHT PARKING OF COMMERCIAL MOTOR VEHICLE IN OR NEAR RESIDENTIAL SUBDIVISION. (a) In this section:
(1) “Commercial motor vehicle” means:
(A) a commercial motor vehicle, as defined by Section 522.003, and includes a vehicle meeting that definition regardless of whether the vehicle is used for a commercial purpose; or
(B) a road tractor, truck tractor, pole trailer, or semitrailer, as those terms are defined by Section 541.201.
(2) “Residential subdivision” means a subdivision in a county with a population greater than 220,000:
(A) for which a plat is recorded in the county real property records; and
(B) in which the majority of lots are subject to deed restrictions limiting the lots to residential use.
(b) Except as provided by Subsection (b-1), after 10 p.m. and before 6 a.m., a person may not park a commercial motor vehicle or leave the vehicle parked on a street that is maintained by a county or municipality and for which signs are posted as provided by Subsection (c) if the street:
(1) is located within a residential subdivision; or
(2) is adjacent to a residential subdivision and within 1,000 feet of the property line of a residence, school, place of worship, or park.
(b-1) A person may park a commercial motor vehicle or leave the vehicle parked on a street for which signs are posted as provided by Subsection (c) if the commercial motor vehicle:
(1) is transporting persons or property to or from the residential subdivision or performing work in the subdivision; and
(2) remains parked in or adjacent to the subdivision only for the period necessary to complete the transportation or work.
(c) The residents of a residential subdivision may petition a county or municipality in which the subdivision is located for the posting of signs prohibiting the overnight parking of a commercial motor vehicle in the subdivision or on a street adjacent to the subdivision and within 1,000 feet of the property line of a residence, school, place of worship, or park. The petition must be signed by at least 25 percent of the owners or tenants of residences in the subdivision. Not more than one person for each residence may sign the petition, and each person signing must be at least 18 years of age. Promptly after the filing of a petition meeting the requirements of this subsection and subject to Subsection (d), the county or municipality receiving the petition shall post the signs. The signs must:
(1) be posted:
(A) at each entrance of the subdivision through which a commercial motor vehicle may enter the subdivision or within the subdivision if there is not defined entrance to the subdivision; or
(B) on a street adjacent to the subdivision; and
(2) state, in letters at least two inches in height, that overnight parking of a commercial motor vehicle is prohibited in the subdivision or on a street adjacent to the subdivision.
(d) A county or municipality receiving a petition under Subsection (c) may condition the posting of the signs on payment by the residents of the residential subdivision of the cost of providing the signs.
(e) A person commits an offense if the person parks a commercial motor vehicle in violation of Subsection (b).
(f) This section does not limit the power of a municipality to regulate the parking of commercial motor vehicles.
(g) For the purposes of this section, contiguous subdivisions that are developed by the same entity or a successor to that entity and that are given the same public name or a variation of the same public name are considered one subdivision. Separation of one of the subdivisions from another by a road, stream, greenbelt, or similar barrier does not make the subdivisions noncontiguous.
(h) This section does not apply to:
(1) a vehicle owned by a utility that an employee of the utility who is on call 24 hours a day parks at the employee’s residence; or
(2) a vehicle owned by a commercial establishment that is parked on the street adjacent to where the establishment is located.

Added by Acts 1997, 75th Leg., ch. 173, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 731, Sec. 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1419, Sec. 1, eff. June 19, 1999.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 1021 (H.B. 1522), Sec. 1, eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 1021 (H.B. 1522), Sec. 2, eff. September 1, 2007.

Sec. 545.308. PRESUMPTION. The governing body of a local authority, by ordinance, order, or other official action, may provide that in a prosecution for an offense under this subchapter involving the stopping, standing, or parking of an unattended motor vehicle it is presumed that the registered owner of the vehicle is the person who stopped, stood, or parked the vehicle at the time and place the offense occurred.

Added by Acts 2001, 77th Leg., ch. 1080, Sec. 2, eff. Sept. 1, 2001.

SUBCHAPTER H. SPEED RESTRICTIONS

Sec. 545.351. MAXIMUM SPEED REQUIREMENT. (a) An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing.
(b) An operator:
(1) may not drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for actual and potential hazards then existing; and
(2) shall control the speed of the vehicle as necessary to avoid colliding with another person or vehicle that is on or entering the highway in compliance with law and the duty of each person to use due care.
(c) An operator shall, consistent with Subsections (a) and (b), drive at an appropriate reduced speed if:
(1) the operator is approaching and crossing an intersection or railroad grade crossing;
(2) the operator is approaching and going around a curve;
(3) the operator is approaching a hill crest;
(4) the operator is traveling on a narrow or winding roadway; and
(5) a special hazard exists with regard to traffic, including pedestrians, or weather or highway conditions.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.109, eff. Sept. 1, 1997.

Sec. 545.352. PRIMA FACIE SPEED LIMITS. (a) A speed in excess of the limits established by Subsection (b) or under another provision of this subchapter is prima facie evidence that the speed is not reasonable and prudent and that the speed is unlawful.
(b) Unless a special hazard exists that requires a slower speed for compliance with Section 545.351(b), the following speeds are lawful:
(1) 30 miles per hour in an urban district on a street other than an alley and 15 miles per hour in an alley;
(2) except as provided by Subdivision (4), 70 miles per hour on a highway numbered by this state or the United States outside an urban district, including a farm-to-market or ranch-to-market road;
(3) except as provided by Subdivision (4), 60 miles per hour on a highway that is outside an urban district and not a highway numbered by this state or the United States;
(4) outside an urban district:
(A) 60 miles per hour if the vehicle is a school bus that has passed a commercial motor vehicle inspection under Section 548.201 and is on a highway numbered by the United States or this state, including a farm-to-market road; or
(B) 50 miles per hour if the vehicle is a school bus that:
(i) has not passed a commercial motor vehicle inspection under Section 548.201; or
(ii) is traveling on a highway not numbered by the United States or this state;
(5) on a beach, 15 miles per hour; or
(6) on a county road adjacent to a public beach, 15 miles per hour, if declared by the commissioners court of the county.
(c) The speed limits for a bus or other vehicle engaged in the business of transporting passengers for compensation or hire, for a commercial vehicle used as a highway post office vehicle for highway post office service in the transportation of United States mail, for a light truck, and for a school activity bus are the same as required for a passenger car at the same time and location.
(d) In this section:
(1) “Interstate highway” means a segment of the national system of interstate and defense highways that is:
(A) located in this state;
(B) officially designated by the Texas Transportation Commission; and
(C) approved under Title 23, United States Code.
(2) “Light truck” means a truck with a manufacturer’s rated carrying capacity of not more than 2,000 pounds, including a pick-up truck, panel delivery truck, and carry-all truck.
(3) “Urban district” means the territory adjacent to and including a highway, if the territory is improved with structures that are used for business, industry, or dwelling houses and are located at intervals of less than 100 feet for a distance of at least one-quarter mile on either side of the highway.
(e) An entity that establishes or alters a speed limit under this subchapter shall establish the same speed limit for daytime and nighttime.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.110(a), eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1020, Sec. 2, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 663, Sec. 2, eff. June 18, 1999; Acts 1999, 76th Leg., ch. 739, Sec. 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1346, Sec. 1, eff. Sept. 1, 1999.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 265 (H.B. 1353), Sec. 1, eff. September 1, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 265 (H.B. 1353), Sec. 2, eff. September 1, 2011.

Sec. 545.353. AUTHORITY OF TEXAS TRANSPORTATION COMMISSION TO ALTER SPEED LIMITS. (a) If the Texas Transportation Commission determines from the results of an engineering and traffic investigation that a prima facie speed limit in this subchapter is unreasonable or unsafe on a part of the highway system, the commission, by order recorded in its minutes, and except as provided in Subsection (d), may determine and declare:
(1) a reasonable and safe prima facie speed limit; and
(2) another reasonable and safe speed because of wet or inclement weather.
(b) In determining whether a prima facie speed limit on a part of the highway system is reasonable and safe, the commission shall consider the width and condition of the pavement, the usual traffic at the affected area, and other circumstances.
(c) A prima facie speed limit that is declared by the commission under this section is effective when the commission erects signs giving notice of the new limit. A new limit that is enacted for a highway under this section is effective at all times or at other times as determined.
(d) Except as provided by Subsection (h-1), the commission may not:
(1) modify the rules established by Section 545.351(b);
(2) establish a speed limit of more than 75 miles per hour; or
(3) increase the speed limit for a vehicle described by Section 545.352(b)(4).
(e) The commission, in conducting the engineering and traffic investigation specified by Subsection (a), shall follow the “Procedure for Establishing Speed Zones” as adopted by the commission. The commission may revise the procedure to accommodate technological advancement in traffic operation, the design and construction of highways and motor vehicles, and the safety of the motoring public.
(f) The commission’s authority to alter speed limits applies:
(1) to any part of a highway officially designated or marked by the commission as part of the state highway system; and
(2) both inside and outside the limits of a municipality, including a home-rule municipality, for a limited-access or controlled-access highway.
(g) For purposes of this section, “wet or inclement weather” means a condition of the roadway that makes driving on the roadway unsafe and hazardous and that is caused by precipitation, including water, ice, and snow.
(h) Notwithstanding Section 545.352(b), the commission may establish a speed limit of 75 miles per hour on a part of the highway system if the commission determines that 75 miles per hour is a reasonable and safe speed for that part of the highway system.
(h-1) Notwithstanding Section 545.352(b), the commission may establish a speed limit of 80 miles per hour on a part of Interstate Highway 10 or Interstate Highway 20 in Crockett, Culberson, Hudspeth, Jeff Davis, Kerr, Kimble, Pecos, Reeves, Sutton, or Ward County if the commission determines that 80 miles per hour is a reasonable and safe speed for that part of the highway.
(h-2) Notwithstanding Section 545.352(b), the commission may establish a speed limit not to exceed 85 miles per hour on a part of the state highway system if:
(1) that part of the highway system is designed to accommodate travel at that established speed or a higher speed; and
(2) the commission determines, after an engineering and traffic investigation, that the established speed limit is reasonable and safe for that part of the highway system.
(i) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 265, Sec. 9, eff. September 1, 2011.
(j) The commission may not determine or declare, or agree to determine or declare, a prima facie speed limit for environmental purposes on a part of the highway system.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.111, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1518, Sec. 1, eff. June 15, 2001; Acts 2003, 78th Leg., ch. 1331, Sec. 25, eff. June 20, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 730 (H.B. 2257), Sec. 1, eff. June 17, 2005.
Acts 2011, 82nd Leg., R.S., Ch. 259 (H.B. 1201), Sec. 11, eff. June 17, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 265 (H.B. 1353), Sec. 3, eff. September 1, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 265 (H.B. 1353), Sec. 9, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 161 (S.B. 1093), Sec. 20.019, eff. September 1, 2013.

Sec. 545.3535. AUTHORITY OF TEXAS TRANSPORTATION COMMISSION TO ALTER SPEED LIMITS ON CERTAIN ROADS. (a) The commissioners court of a county by resolution may request the Texas Transportation Commission to determine and declare a reasonable and safe prima facie speed limit that is lower than a speed limit established by Section 545.352 on any part of a farm-to-market or a ranch-to-market road of the highway system that is located in that county and is without improved shoulders.
(b) The commission shall give consideration to local public opinion and may determine and declare a lower speed limit on any part of the road without an engineering and traffic investigation, but the commission must use sound and generally accepted traffic engineering practices in determining and declaring the lower speed limit.
(c) The commission by rule shall establish standards for determining lower speed limits within a set range.

Added by Acts 1997, 75th Leg., ch. 1171, Sec. 1.45, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 1346, Sec. 2, eff. Sept. 1, 1999.

Sec. 545.354. AUTHORITY OF REGIONAL TOLLWAY AUTHORITIES TO ALTER SPEED LIMITS ON TURNPIKE PROJECTS. (a) (1) In this section, “authority” means a regional tollway authority governed by Chapter 366.
(2) If an authority determines from the results of an engineering and traffic investigation that a prima facie speed limit described in this subchapter is unreasonable or unsafe on a part of a turnpike constructed and maintained by the authority, the authority by order recorded in its minutes shall determine and declare a reasonable and safe prima facie speed limit for vehicles or classes of vehicles on the turnpike.
(b) In determining whether a prima facie speed limit on a part of a turnpike constructed and maintained by the authority is reasonable or safe, the authority shall consider the width and condition of the pavement, the usual traffic on the turnpike, and other circumstances.
(c) A prima facie speed limit that is declared by the authority in accordance with this section is effective when the authority erects signs giving notice of the new limit. A new limit that is adopted for a turnpike project constructed and maintained by the authority in accordance with this section is effective at all times or at other times as determined.
(d) The authority’s power to alter prima facie speed limits is effective and exclusive on any part of a turnpike project constructed and maintained by the authority inside and outside the limits of a municipality, including a home-rule municipality.
(e) The authority may not:
(1) alter the general rule established by Section 545.351(a); or
(2) establish a speed limit of more than 75 miles per hour.
(f) The authority, in conducting the engineering and traffic investigation specified by Subsection (a), shall follow the procedure for establishing speed zones adopted by the Texas Department of Transportation.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. 576, Sec. 3, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 920, Sec. 18, eff. June 14, 2001; Acts 2003, 78th Leg., ch. 312, Sec. 74, 75, eff. June 18, 2003; Acts 2003, 78th Leg., ch. 1325, Sec. 15.71, 15.72, eff. June 21, 2003.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 265 (H.B. 1353), Sec. 4, eff. September 1, 2011.

Sec. 545.355. AUTHORITY OF COUNTY COMMISSIONERS COURT TO ALTER SPEED LIMITS. (a) The commissioners court of a county, for a county road or highway outside the limits of the right-of-way of an officially designated or marked highway or road of the state highway system and outside a municipality, has the same authority to increase prima facie speed limits from the results of an engineering and traffic investigation as the Texas Transportation Commission on an officially designated or marked highway of the state highway system.
(b) The commissioners court of a county may declare a lower speed limit of not less than:
(1) 30 miles per hour on a county road or highway to which this section applies, if the commissioners court determines that the prima facie speed limit on the road or highway is unreasonable or unsafe; or
(2) 20 miles per hour in a residence district, unless the roadway has been designated as a major thoroughfare by a city planning commission.
(c) The commissioners court may not modify the rule established by Section 545.351(a) or establish a speed limit of more than 70 miles per hour.
(d) The commissioners court may modify a prima facie speed limit in accordance with this section only by an order entered on its records.
(e) The commissioners court of a county with a population of more than 2.8 million may establish from the results of an engineering and traffic investigation a speed limit of not more than 75 miles per hour on any part of a highway of that county that is a limited-access or controlled-access highway, regardless of the location of the part of the highway.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 58, Sec. 1, eff. May 9, 1997; Acts 1997, 75th Leg., ch. 833, Sec. 1, eff. June 18, 1997; Acts 2003, 78th Leg., ch. 852, Sec. 1, eff. June 20, 2003.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 265 (H.B. 1353), Sec. 5, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 936 (H.B. 1607), Sec. 1, eff. June 14, 2013.

Sec. 545.356. AUTHORITY OF MUNICIPALITY TO ALTER SPEED LIMITS. (a) The governing body of a municipality, for a highway or part of a highway in the municipality, including a highway of the state highway system, has the same authority to alter by ordinance prima facie speed limits from the results of an engineering and traffic investigation as the Texas Transportation Commission on an officially designated or marked highway of the state highway system. The governing body of a municipality may not modify the rule established by Section 545.351(a) or establish a speed limit of more than 75 miles per hour.
(b) The governing body of a municipality, for a highway or part of a highway in the municipality, including a highway of the state highway system, has the same authority to alter prima facie speed limits from the results of an engineering and traffic investigation as the commission for an officially designated or marked highway of the state highway system, when the highway or part of the highway is under repair, construction, or maintenance. A municipality may not modify the rule established by Section 545.351(a) or establish a speed limit of more than 75 miles per hour.
(b-1) Except as provided by Subsection (b-3), the governing body of a municipality, for a highway or a part of a highway in the municipality that is not an officially designated or marked highway or road of the state highway system, may declare a lower speed limit of not less than 25 miles per hour, if the governing body determines that the prima facie speed limit on the highway is unreasonable or unsafe.
(b-2) Subsection (b-1) applies only to a two-lane, undivided highway or part of a highway.
(b-3) The governing body of a municipality with a population of 2,000 or less, for a highway or a part of a highway in the municipality that is a one-lane highway used for two-way access and that is not an officially designated or marked highway or road of the state highway system, may declare a lower speed limit of not less than 10 miles per hour, if the governing body determines that the prima facie speed limit on the highway is unreasonable or unsafe.
(c) A prima facie speed limit that is altered by the governing body of a municipality under Subsection (b), (b-1), or (b-3) is effective when the governing body erects signs giving notice of the new limit and at all times or at other times as determined.
(d) The governing body of a municipality that declares a lower speed limit on a highway or part of a highway under Subsection (b-1) or (b-3), not later than February 1 of each year, shall publish on its Internet website and submit to the department a report that compares for each of the two previous calendar years:
(1) the number of traffic citations issued by peace officers of the municipality and the alleged speed of the vehicles, for speed limit violations on the highway or part of the highway;
(2) the number of warning citations issued by peace officers of the municipality on the highway or part of the highway; and
(3) the number of vehicular accidents that resulted in injury or death and were attributable to speed limit violations on the highway or part of the highway.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by:
Acts 2005, 79th Leg., Ch. 166 (H.B. 87), Sec. 1, eff. May 27, 2005.
Acts 2009, 81st Leg., R.S., Ch. 1144 (H.B. 2682), Sec. 1, eff. June 19, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 265 (H.B. 1353), Sec. 6, eff. September 1, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 1016 (H.B. 2596), Sec. 1, eff. June 17, 2011.

Sec. 545.3561. AUTHORITY OF MUNICIPALITY OR COUNTY TO TEMPORARILY LOWER SPEED LIMIT AT VEHICULAR ACCIDENT RECONSTRUCTION SITE. (a) The governing body of a municipality by ordinance may give a designated official with transportation engineering experience establishing speed limits discretion to temporarily lower a prima facie speed limit for a highway or part of a highway in the municipality, including a highway of the state highway system, at the site of an investigation using vehicular accident reconstruction.
(b) A county commissioners court by order may give a designated official with transportation engineering experience establishing speed limits discretion to temporarily lower prima facie speed limits for a county road or highway outside the boundaries of a municipality at the site of an investigation using vehicular accident reconstruction. The authority granted under this subsection does not include a road or highway in the state highway system.
(c) The Texas Department of Transportation shall develop safety guidelines for the use of vehicular accident reconstruction in investigations. A municipality, county, or designated official shall comply with the guidelines.
(d) A designated official may temporarily lower prima facie speed limits without the approval of or permission from the Texas Department of Transportation. A designated official who intends to temporarily lower a prima facie speed limit at the site of an investigation using vehicular accident reconstruction shall, at least 48 hours before temporary speed limit signs are posted for the vehicular accident reconstruction site, provide to the Texas Department of Transportation notice that includes:
(1) the date and time of the accident reconstruction;
(2) the location of the accident reconstruction site;
(3) the entities involved at the site;
(4) the general size of the area affected by the site; and
(5) an estimate of how long the site will be used for the accident reconstruction.
(e) A temporary speed limit established under this section:
(1) is a prima facie prudent and reasonable speed limit enforceable in the same manner as other prima facie speed limits established under other provisions of this subchapter; and
(2) supersedes any other established speed limit that would permit a person to operate a motor vehicle at a higher rate of speed.
(f) A designated official who temporarily lowers a speed limit shall:
(1) place and maintain at the vehicular accident reconstruction site temporary speed limit signs that conform to the manual and specifications adopted under Section 544.001;
(2) temporarily conceal all other signs on the highway segment affected by the vehicular accident reconstruction site that give notice of a speed limit that would permit a person to operate a motor vehicle at a higher rate of speed; and
(3) remove all temporary speed limit signs placed under Subdivision (1) and concealments of other signs placed under Subdivision (2) when the official finds that the vehicular accident reconstruction is complete and all equipment is removed from the vehicular accident reconstruction site.
(g) A temporary speed limit established under this section is effective when a designated official places temporary speed limit signs and conceals other signs that would permit a person to operate a motor vehicle at a higher rate of speed as required under Subsection (f).
(h) A temporary speed limit established under this section is effective until the designated official under Subsection (a) or (b):
(1) finds that the vehicular accident reconstruction is complete; and
(2) removes all temporary signs, concealments, and equipment used at the vehicular accident reconstruction site.
(i) If a designated official does not comply with the requirements of Subsection (f)(3) for a vehicular accident reconstruction on a state highway associated with the reconstruction, the Texas Department of Transportation may remove signs and concealments.

Added by Acts 2011, 82nd Leg., R.S., Ch. 216 (H.B. 109), Sec. 2, eff. September 1, 2011.

Sec. 545.357. PUBLIC HEARING TO CONSIDER SPEED LIMITS WHERE CERTAIN SCHOOLS ARE LOCATED. (a) The governing body of a municipality in which a public or private elementary or secondary school or an institution of higher education as defined by Section 61.003(8) or (15), Education Code, is located shall on request hold a public hearing at least once each calendar year to consider prima facie speed limits on a highway in the municipality, including a highway of the state highway system, near the school or institution of higher education.
(b) If a county road outside the state highway system is located within 500 feet of a public or private elementary or secondary school or an institution of higher education that is not in a municipality, the commissioners court of the county on request shall hold a public hearing at least once each calendar year to consider the prima facie speed limit on the road near the school or institution of higher education.
(c) A municipal governing body or commissioners court on request may hold one public hearing for all public and private elementary and secondary schools and institutions of higher education in its jurisdiction.
(d) The Texas Transportation Commission, on request, shall hold a public hearing at least once each calendar year to consider prima facie speed limits on highways in the state highway system that are near public or private elementary or secondary schools or institutions of higher education.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 350, Sec. 1, eff. Sept. 1, 1997.

Sec. 545.358. AUTHORITY OF COMMANDING OFFICER OF UNITED STATES MILITARY RESERVATION TO ALTER SPEED LIMITS. The commanding officer of a United States military reservation, for a highway or part of a highway in the military reservation, including a highway of the state highway system, has the same authority by order to alter prima facie speed limits from the results of an engineering and traffic investigation as the Texas Transportation Commission for an officially designated or marked highway of the state highway system. A commanding officer may not modify the rule established by Section 545.351(a) or establish a speed limit of more than 75 miles per hour.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 265 (H.B. 1353), Sec. 7, eff. September 1, 2011.

Sec. 545.359. CONFLICTING DESIGNATED SPEED LIMITS. An order of the Texas Transportation Commission declaring a speed limit on a part of a designated or marked route of the state highway system made under Section 545.353 or 545.362 supersedes any conflicting designated speed established under Sections 545.356 and 545.358.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.360. DUTY OF TEXAS TRANSPORTATION COMMISSION AND STATE BOARD OF EDUCATION TO PROVIDE INFORMATION AND ASSISTANCE. The chairman of the Texas Transportation Commission and the chairman of the State Board of Education shall provide assistance and information relevant to consideration of speed limits to commissioners courts, municipal governing bodies, and other interested persons.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.361. SPECIAL SPEED LIMITATIONS. (a) An operator of a motor-driven cycle may not drive at a speed of more than 35 miles per hour during the time specified by Section 547.302(a) unless the cycle is equipped with a headlamp or lamps that reveal a person or vehicle 300 feet ahead.
(b) An operator of a vehicle equipped with solid rubber or cushion tires may not drive at a speed of more than 10 miles per hour.
(c) An operator driving over a bridge or other elevated structure that is a part of a highway may not drive at a speed of more than the maximum speed that can be maintained with safety to the bridge or structure, when signs are posted as provided by this section.
(d) An operator of self-propelled machinery designed or adapted for applying plant food materials or agricultural chemicals and not designed or adapted for the sole purpose of transporting the materials or chemicals may not drive at a speed of more than 30 miles per hour unless the machinery is registered under Chapter 502.
(e) The Texas Transportation Commission, for a state highway, the Texas Turnpike Authority, for any part of a turnpike constructed and maintained by the authority, and a local authority for a highway under the jurisdiction of the local authority, may investigate a bridge or other elevated structure that is a part of a highway. If after conducting the investigation the commission, turnpike authority, or local authority finds that the structure cannot safely withstand vehicles traveling at a speed otherwise permissible under this subtitle, the commission, turnpike authority, or local authority shall:
(1) determine and declare the maximum speed of vehicles that the structure can safely withstand; and
(2) post and maintain signs before each end of the structure stating the maximum speed.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.362. TEMPORARY SPEED LIMITS. (a) Subject to Subsection (c), the Texas Transportation Commission may enter an order establishing prima facie speed limits of not more than 75 miles per hour applicable to all highways, including a turnpike under the authority of the Texas Turnpike Authority or a highway under the control of a municipality or county. An order entered under this section does not have the effect of increasing a speed limit on any highway.
(b) The limits established under this section:
(1) are prima facie prudent and reasonable speed limits enforceable in the same manner as prima facie limits established under other provisions of this subchapter; and
(2) supersede any other established speed limit that would permit a person to operate a motor vehicle at a higher rate of speed.
(c) An order may be issued under Subsection (a) only if the commission finds and states in the order that:
(1) a severe shortage of motor fuel or other petroleum product exists, the shortage was caused by war, national emergency, or other circumstances, and a reduction of speed limits will foster conservation and safety; or
(2) the failure to alter state speed limits will prevent the state from receiving money from the United States for highway purposes.
(d) Unless a specific speed limit is required by federal law or directive under threat of loss of highway money of the United States, the commission may not set prima facie speed limits under this section of all vehicles at less than 60 miles per hour, except on a divided highway of at least four lanes, for which the commission may not set prima facie speed limits of all vehicles at less than 65 miles per hour.
(e) Before the commission may enter an order establishing a prima facie speed limit, it must hold a public hearing preceded by the publication in at least three newspapers of general circulation in the state of a notice of the date, time, and place of the hearing and of the action proposed to be taken. The notice must be published at least 12 days before the date of the hearing. At the hearing, all interested persons may present oral or written testimony regarding the proposed order.
(f) If the commission enters an order under this section, it shall file the order in the office of the governor. The governor shall then make an independent finding of fact and determine the existence of the facts in Subsection (c). Before the 13th day after the date the order is filed in the governor’s office, the governor shall conclude the finding of fact, issue a proclamation stating whether the necessary facts exist to support the issuance of the commission’s order, and file copies of the order and the proclamation in the office of the secretary of state.
(g) If the governor’s proclamation states that the facts necessary to support the issuance of the commission’s order exist, the order takes effect according to Subsection (h). Otherwise, the order has no effect.
(h) In an order issued under this section, the commission may specify the date the order takes effect, but that date may not be sooner than the eighth day after the date the order is filed with the governor. If the order does not have an effective date, it takes effect on the 21st day after the date it is filed with the governor. Unless the order by its own terms expires earlier, it remains in effect until a subsequent order adopted by the procedure prescribed by this section amends or repeals it, except that an order adopted under this section expires when this section expires. The procedure for repealing an order is the same as for adopting an order, except that the commission and the governor must find that the facts required to support the issuance of an order under Subsection (c) no longer exist.
(i) If an order is adopted in accordance with this section, the commission and all governmental authorities responsible for the maintenance of highway speed limit signs shall take appropriate action to conceal or remove all signs that give notice of a speed limit of more than the one contained in the order and to erect appropriate signs. All governmental entities responsible for administering traffic safety programs and enforcing traffic laws shall use all available resources to notify the public of the effect of the order. To accomplish this purpose, the governmental entities shall request the cooperation of all news media in the state.
(j) A change in speed limits under this section is effective until the commission makes a finding that the conditions in Subsection (c) require or authorize an additional change in those speed limits or in the highway or sections of highway to which those speed limits apply.
(k) This section expires when the national maximum speed limits are repealed.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 265 (H.B. 1353), Sec. 8, eff. September 1, 2011.

Sec. 545.3625. CONFIDENTIALITY OF VIOLATION INFORMATION: FUEL CONSERVATION SPEED LIMIT. (a) If a person violates a maximum prima facie speed limit imposed under Section 545.362, as that law existed immediately before December 8, 1995, and the person was not traveling at a speed, as alleged in the citation, if not contested by the person, or, if contested by the person, as alleged in the complaint and found by the court, that is greater than the maximum prima facie speed limit for the location that has been established under this chapter, other than under Section 545.362, information in the custody of the department concerning the violation is confidential.
(b) The department may not release the information to any person or to another state governmental entity.

Added by Acts 1997, 75th Leg., ch. 165, Sec. 30.112(a), eff. Sept. 1, 1997.

Sec. 545.363. MINIMUM SPEED REGULATIONS. (a) An operator may not drive so slowly as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.
(b) When the Texas Transportation Commission, the Texas Turnpike Authority, the commissioners court of a county, or the governing body of a municipality, within the jurisdiction of each, as applicable, as specified in Sections 545.353 to 545.357, determines from the results of an engineering and traffic investigation that slow speeds on a part of a highway consistently impede the normal and reasonable movement of traffic, the commission, authority, county commissioners court, or governing body may determine and declare a minimum speed limit on the highway.
(c) If appropriate signs are erected giving notice of a minimum speed limit adopted under this section, an operator may not drive a vehicle more slowly than that limit except as necessary for safe operation or in compliance with law.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.365. SPEED LIMIT EXCEPTION FOR EMERGENCIES; MUNICIPAL REGULATION. (a) The regulation of the speed of a vehicle under this subchapter does not apply to:
(1) an authorized emergency vehicle responding to a call;
(2) a police patrol; or
(3) a physician or ambulance responding to an emergency call.
(b) A municipality by ordinance may regulate the speed of:
(1) an ambulance;
(2) an emergency medical services vehicle; or
(3) an authorized vehicle operated by a blood or tissue bank.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

SUBCHAPTER I. MISCELLANEOUS RULES

Sec. 545.401. RECKLESS DRIVING; OFFENSE. (a) A person commits an offense if the person drives a vehicle in wilful or wanton disregard for the safety of persons or property.
(b) An offense under this section is a misdemeanor punishable by:
(1) a fine not to exceed $200;
(2) confinement in county jail for not more than 30 days; or
(3) both the fine and the confinement.
(c) Notwithstanding Section 542.001, this section applies to:
(1) a private access way or parking area provided for a client or patron by a business, other than a private residential property or the property of a garage or parking lot for which a charge is made for the storing or parking of motor vehicles; and
(2) a highway or other public place.
(d) Notwithstanding Section 542.004, this section applies to a person, a team, or motor vehicles and other equipment engaged in work on a highway surface.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.402. MOVING A PARKED VEHICLE. An operator may not begin movement of a stopped, standing, or parked vehicle unless the movement can be made safely.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.403. DRIVING THROUGH SAFETY ZONE. An operator may not drive through or in a safety zone.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 2194, 84th Legislature, Regular Session, for amendments affecting this section.

Sec. 545.404. UNATTENDED MOTOR VEHICLE. An operator may not leave the vehicle unattended without:
(1) stopping the engine;
(2) locking the ignition;
(3) removing the key from the ignition;
(4) setting the parking brake effectively; and
(5) if standing on a grade, turning the front wheels to the curb or side of the highway.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.405. DRIVING ON MOUNTAIN HIGHWAY. An operator moving through a defile or canyon or on a mountain highway shall:
(1) hold the vehicle under control and as near the right-hand edge of the highway as possible; and
(2) on approaching a curve that obstructs the view of the highway for 200 feet, give warning with the horn of the motor vehicle.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.406. COASTING. (a) An operator moving on a downgrade may not coast with the gears or transmission of the vehicle in neutral.
(b) An operator of a truck, tractor, or bus moving on a downgrade may not coast with the clutch disengaged.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.407. FOLLOWING OR OBSTRUCTING FIRE APPARATUS OR AMBULANCE. (a) An operator, unless on official business, may not follow closer than 500 feet a fire apparatus responding to a fire alarm or drive into or park the vehicle in the block where the fire apparatus has stopped to answer a fire alarm.
(b) An operator may not:
(1) follow closer than 500 feet an ambulance that is flashing red lights unless the operator is on official business; or
(2) drive or park the vehicle where an ambulance has been summoned for an emergency call in a manner intended to interfere with the arrival or departure of the ambulance.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.408. CROSSING FIRE HOSE. An operator may not, without the consent of the fire department official in command, drive over an unprotected hose of a fire department if the hose is on a street or private driveway and is intended for use at a fire or alarm of fire.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.409. DRAWBARS AND TRAILER HITCHES; SADDLE-MOUNT TOWING. (a) The drawbar or other connection between a vehicle drawing another vehicle and the drawn vehicle:
(1) must be strong enough to pull all weight drawn; and
(2) may not exceed 15 feet between the vehicles except for a connection between two vehicles transporting poles, pipe, machinery, or other objects of structural nature that cannot readily be dismembered.
(b) An operator drawing another vehicle and using a chain, rope, or cable to connect the vehicles shall display on the connection a white flag or cloth not less than 12 inches square.
(c) A motor vehicle may not draw more than three motor vehicles attached to it by the triple saddle-mount method. In this subsection, “triple saddle-mount method” means the mounting of the front wheels of trailing vehicles on the bed of another vehicle while leaving the rear wheels only of the trailing vehicles in contact with the roadway.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.410. TOWING SAFETY CHAINS. (a) An operator of a passenger car or light truck may not draw a trailer, semitrailer, house trailer, or another motor vehicle unless safety chains of a type approved by the department are attached in a manner approved by the department from the trailer, semitrailer, house trailer, or drawn motor vehicle to the drawing vehicle. This subsection does not apply to the drawing of a trailer or semitrailer used for agricultural purposes.
(b) The department shall adopt rules prescribing the type of safety chains required to be used according to the weight of the trailer, semitrailer, house trailer, or motor vehicle being drawn. The rules shall:
(1) require safety chains to be strong enough to maintain the connection between the trailer, semitrailer, house trailer, or drawn motor vehicle and the drawing vehicle; and
(2) show the proper method to attach safety chains between the trailer, semitrailer, house trailer, or drawn motor vehicle and the drawing vehicle.
(c) Subsection (b) does not apply to trailers, semitrailers, or house trailers that are equipped with safety chains installed by the original manufacturer before the effective date of the rules.
(d) This section does not apply to a trailer, semitrailer, house trailer, or drawn motor vehicle that is operated in compliance with the federal motor carrier safety regulations.
(e) In this section, “safety chains” means flexible tension members connected from the front of a drawn vehicle to the rear of the drawing vehicle to maintain connection between the vehicles if the primary connecting system fails.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.113(a), eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1357, Sec. 1, eff. Sept. 1, 1999.

Sec. 545.411. USE OF REST AREA: OFFENSE. (a) A person commits an offense if the person remains at a rest area for longer than 24 hours or erects a tent, shelter, booth, or structure at the rest area and the person:
(1) has notice while conducting the activity that the activity is prohibited; or
(2) receives notice that the activity is prohibited but does not depart or remove the structure within eight hours after receiving notice.
(b) For purposes of this section, a person:
(1) has notice if a sign stating the prohibited activity and penalty is posted on the premises; or
(2) receives notice if a peace officer orally communicates to the person the prohibited activity and penalty for the offense.
(c) It is an exception to Subsection (a) if a nonprofit organization erects a temporary structure at a rest area to provide food services, food, or beverages to travelers and the Texas Department of Transportation:
(1) finds that the services would constitute a public service for the benefit of the traveling public; and
(2) issues a permit to the organization.
(d) In this section, “rest area” means public real property designated as a rest area, comfort station, picnic area, roadside park, or scenic overlook by the Texas Department of Transportation.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 1786, 84th Legislature, Regular Session, for amendments affecting this section.

Sec. 545.412. CHILD PASSENGER SAFETY SEAT SYSTEMS; OFFENSE.
(a) A person commits an offense if the person operates a passenger vehicle, transports a child who is younger than eight years of age, unless the child is taller than four feet, nine inches, and does not keep the child secured during the operation of the vehicle in a child passenger safety seat system according to the instructions of the manufacturer of the safety seat system.
(b) An offense under this section is a misdemeanor punishable by a fine of not less than $25 and not more than $250.
(b-1) Repealed by Acts 2011, 82nd Leg., 1st C.S., Ch. 4, Sec. 69.01(1), eff. September 28, 2011.
(c) It is a defense to prosecution under this section that the person was operating the vehicle in an emergency or for a law enforcement purpose.
(d) Repealed by Acts 2003, 78th Leg., ch. 204, Sec. 8.01.
(e) This section does not apply to a person:
(1) operating a vehicle transporting passengers for hire, excluding third-party transport service providers when transporting clients pursuant to a contract to provide nonemergency Medicaid transportation; or
(2) transporting a child in a vehicle in which all seating positions equipped with child passenger safety seat systems or safety belts are occupied.
(f) In this section:
(1) “Child passenger safety seat system” means an infant or child passenger restraint system that meets the federal standards for crash-tested restraint systems as set by the National Highway Traffic Safety Administration.
(2) “Passenger vehicle” means a passenger car, light truck, sport utility vehicle, passenger van designed to transport 15 or fewer passengers, including the driver, truck, or truck tractor.
(3) “Safety belt” means a lap belt and any shoulder straps included as original equipment on or added to a vehicle.
(4) “Secured,” in connection with use of a safety belt, means using the lap belt and any shoulder straps according to the instructions of:
(A) the manufacturer of the vehicle, if the safety belt is original equipment; or
(B) the manufacturer of the safety belt, if the safety belt has been added to the vehicle.
(g) A judge, acting under Article 45.0511, Code of Criminal Procedure, who elects to defer further proceedings and to place a defendant accused of a violation of this section on probation under that article, in lieu of requiring the defendant to complete a driving safety course approved by the Texas Education Agency, shall require the defendant to attend and present proof that the defendant has successfully completed a specialized driving safety course approved by the Texas Education Agency under the Texas Driver and Traffic Safety Education Act (Article 4413(29c), Vernon’s Texas Civil Statutes) that includes four hours of instruction that encourages the use of child passenger safety seat systems and the wearing of seat belts and emphasizes:
(1) the effectiveness of child passenger safety seat systems and seat belts in reducing the harm to children being transported in motor vehicles; and
(2) the requirements of this section and the penalty for noncompliance.
(h) Notwithstanding Section 542.402(a), a municipality or county, at the end of the municipality’s or county’s fiscal year, shall send to the comptroller an amount equal to 50 percent of the fines collected by the municipality or the county for violations of this section. The comptroller shall deposit the amount received to the credit of the tertiary care fund for use by trauma centers.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.114(a), eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 618, Sec. 1, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 910, Sec. 1, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1042, Sec. 1, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 204, Sec. 8.01, eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 913 (H.B. 183), Sec. 1, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 913 (H.B. 183), Sec. 2, eff. September 1, 2005.
Acts 2009, 81st Leg., R.S., Ch. 255 (S.B. 61), Sec. 1, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1257 (H.B. 537), Sec. 1, eff. September 1, 2009.
Acts 2011, 82nd Leg., 1st C.S., Ch. 4 (S.B. 1), Sec. 69.01(1), eff. September 28, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 1391 (H.B. 1294), Sec. 1, eff. September 1, 2013.

Sec. 545.4121. DISMISSAL; OBTAINING CHILD PASSENGER SAFETY SEAT SYSTEM. (a) This section applies to an offense committed under Section 545.412.
(b) It is a defense to prosecution of an offense to which this section applies that the defendant provides to the court evidence satisfactory to the court that:
(1) at the time of the offense:
(A) the defendant was not arrested or issued a citation for violation of any other offense;
(B) the defendant did not possess a child passenger safety seat system in the vehicle; and
(C) the vehicle the defendant was operating was not involved in an accident; and
(2) subsequent to the time of the offense, the defendant obtained an appropriate child passenger safety seat system for each child required to be secured in a child passenger safety seat system under Section 545.412(a).

Added by Acts 2005, 79th Leg., Ch. 913 (H.B. 183), Sec. 3, eff. September 1, 2005.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 1391 (H.B. 1294), Sec. 2, eff. September 1, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 1391 (H.B. 1294), Sec. 3, eff. September 1, 2013.

This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 1786, 84th Legislature, Regular Session, for amendments affecting this section.

Sec. 545.413. SAFETY BELTS; OFFENSE.
(a) A person commits an offense if:
(1) the person:
(A) is at least 15 years of age;
(B) is riding in a passenger vehicle while the vehicle is being operated;
(C) is occupying a seat that is equipped with a safety belt; and
(D) is not secured by a safety belt; or
(2) as the operator of a school bus equipped with a safety belt for the operator’s seat, the person is not secured by the safety belt.
(b) A person commits an offense if the person:
(1) operates a passenger vehicle that is equipped with safety belts; and
(2) allows a child who is younger than 17 years of age and who is not required to be secured in a child passenger safety seat system under Section 545.412(a) to ride in the vehicle without requiring the child to be secured by a safety belt, provided the child is occupying a seat that is equipped with a safety belt.
(b-1) A person commits an offense if the person allows a child who is younger than 17 years of age and who is not required to be secured in a child passenger safety seat system under Section 545.412(a) to ride in a passenger van designed to transport 15 or fewer passengers, including the driver, without securing the child individually by a safety belt, if the child is occupying a seat that is equipped with a safety belt.
(c) A passenger vehicle or a seat in a passenger vehicle is considered to be equipped with a safety belt if the vehicle is required under Section 547.601 to be equipped with safety belts.
(d) An offense under Subsection (a) is a misdemeanor punishable by a fine of not less than $25 or more than $50. An offense under Subsection (b) is a misdemeanor punishable by a fine of not less than $100 or more than $200.
(e) It is a defense to prosecution under this section that:
(1) the person possesses a written statement from a licensed physician stating that for a medical reason the person should not wear a safety belt;
(2) the person presents to the court, not later than the 10th day after the date of the offense, a statement from a licensed physician stating that for a medical reason the person should not wear a safety belt;
(3) the person is employed by the United States Postal Service and performing a duty for that agency that requires the operator to service postal boxes from a vehicle or that requires frequent entry into and exit from a vehicle;
(4) the person is engaged in the actual delivery of newspapers from a vehicle or is performing newspaper delivery duties that require frequent entry into and exit from a vehicle;
(5) the person is employed by a public or private utility company and is engaged in the reading of meters or performing a similar duty for that company requiring the operator to frequently enter into and exit from a vehicle;
(6) the person is operating a commercial vehicle registered as a farm vehicle under the provisions of Section 502.433 that does not have a gross weight, registered weight, or gross weight rating of 48,000 pounds or more; or
(7) the person is the operator of or a passenger in a vehicle used exclusively to transport solid waste and performing duties that require frequent entry into and exit from the vehicle.
(f) The department shall develop and implement an educational program to encourage the wearing of safety belts and to emphasize:
(1) the effectiveness of safety belts and other restraint devices in reducing the risk of harm to passengers in motor vehicles; and
(2) the requirements of this section and the penalty for noncompliance.
(g) Repealed by Acts 2003, 78th Leg., ch. 204, Sec. 8.01.
(h) In this section, “passenger vehicle,” “safety belt,” and “secured” have the meanings assigned by Section 545.412.
(i) A judge, acting under Article 45.0511, Code of Criminal Procedure, who elects to defer further proceedings and to place a defendant accused of a violation of Subsection (b) on probation under that article, in lieu of requiring the defendant to complete a driving safety course approved by the Texas Education Agency, shall require the defendant to attend and present proof that the defendant has successfully completed a specialized driving safety course approved by the Texas Education Agency under the Texas Driver and Traffic Safety Education Act (Article 4413(29c), Vernon’s Texas Civil Statutes) that includes four hours of instruction that encourages the use of child passenger safety seat systems and the wearing of seat belts and emphasizes:
(1) the effectiveness of child passenger safety seat systems and seat belts in reducing the harm to children being transported in motor vehicles; and
(2) the requirements of this section and the penalty for noncompliance.
(j) Notwithstanding Section 542.402(a), a municipality or county, at the end of the municipality’s or county’s fiscal year, shall send to the comptroller an amount equal to 50 percent of the fines collected by the municipality or the county for violations of Subsection (b) of this section. The comptroller shall deposit the amount received to the credit of the tertiary care fund for use by trauma centers.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.115(a), eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 316, Sec. 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 515, Sec. 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 618, Sec. 2, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 910, Sec. 2, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1042, Sec. 2, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 204, Sec. 8.01, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 431, Sec. 1, eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 913 (H.B. 183), Sec. 4, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 923 (H.B. 3190), Sec. 4, eff. September 1, 2007.
Acts 2009, 81st Leg., R.S., Ch. 974 (H.B. 3638), Sec. 1, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1257 (H.B. 537), Sec. 2, eff. September 1, 2009.
Acts 2013, 83rd Leg., R.S., Ch. 161 (S.B. 1093), Sec. 20.020, eff. September 1, 2013.

Sec. 545.414. RIDING IN OPEN BEDS; OFFENSE. (a) A person commits an offense if the person operates an open-bed pickup truck or an open flatbed truck or draws an open flatbed trailer when a child younger than 18 years of age is occupying the bed of the truck or trailer.
(b) An offense under this section is a misdemeanor punishable by a fine of not less than $25 or more than $200.
(c) It is a defense to prosecution under this section that the person was:
(1) operating or towing the vehicle in a parade or in an emergency;
(2) operating the vehicle to transport farmworkers from one field to another field on a farm-to-market road, ranch-to-market road, or county road outside a municipality;
(3) operating the vehicle on a beach;
(4) operating a vehicle that is the only vehicle owned or operated by the members of a household; or
(5) operating the vehicle in a hayride permitted by the governing body of or a law enforcement agency of each county or municipality in which the hayride will occur.
(d) Compliance or noncompliance with Subsection (a) is not admissible evidence in a civil trial.
(e) In this section, “household” has the meaning assigned by Section 71.005, Family Code.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 2001, 77th Leg., ch. 79, Sec. 1, eff. Sept. 1, 2001.

Sec. 545.4145. RIDING IN OR ON BOAT OR PERSONAL WATERCRAFT DRAWN BY VEHICLE; OFFENSE. (a) A person commits an offense if the person operates a motor vehicle on a highway or street when a child younger than 18 years of age is occupying a boat or personal watercraft being drawn by the motor vehicle.
(b) It is a defense to prosecution under this section that the person was:
(1) operating the motor vehicle in a parade or in an emergency; or
(2) operating the motor vehicle on a beach.
(c) In this section, “boat” and “personal watercraft” have the meanings assigned by Section 31.003, Parks and Wildlife Code.

Added by Acts 2011, 82nd Leg., R.S., Ch. 1172 (H.B. 2981), Sec. 1, eff. September 1, 2011.

Sec. 545.415. BACKING A VEHICLE. (a) An operator may not back the vehicle unless the movement can be made safely and without interference with other traffic.
(b) An operator may not back the vehicle on a shoulder or roadway of a limited-access or controlled-access highway.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

This section was amended by the 84th Legislature. Pending publication of the current statutes, see S.B. 449, 84th Legislature, Regular Session, for amendments affecting this section.

Sec. 545.416. RIDING ON MOTORCYCLE. (a) An operator of a motorcycle shall ride on the permanent and regular seat attached to the motorcycle.
(b) An operator may not carry another person on the motorcycle, and a person who is not operating the motorcycle may not ride on the motorcycle, unless the motorcycle is:
(1) designed to carry more than one person; and
(2) equipped with footrests and handholds for use by the passenger.
(c) If the motorcycle is designed to carry more than one person, a passenger may ride only on the permanent and regular seat, if designed for two persons, or on another seat firmly attached to the motorcycle behind or to the side of the operator.
(d) Except as provided by Subsection (e), an operator may not carry another person on a motorcycle unless the other person is at least five years of age. An offense under this subsection is a misdemeanor punishable by a fine of not less than $100 or more than $200. It is a defense to prosecution under this subsection that the operator was operating the motorcycle in an emergency or for a law enforcement purpose.
(e) Subsection (d) does not prohibit an operator from carrying on a motorcycle a person younger than five years of age who is seated in a sidecar attached to the motorcycle.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 1257 (H.B. 537), Sec. 3, eff. September 1, 2009.
Acts 2013, 83rd Leg., R.S., Ch. 1111 (H.B. 3838), Sec. 3, eff. September 1, 2013.

Sec. 545.417. OBSTRUCTION OF OPERATOR’S VIEW OR DRIVING MECHANISM. (a) An operator may not drive a vehicle when it is loaded so that, or when the front seat has a number of persons, exceeding three, so that:
(1) the view of the operator to the front or sides of the vehicle is obstructed; or
(2) there is interference with the operator’s control over the driving mechanism of the vehicle.
(b) A passenger in a vehicle may not ride in a position that interferes with the operator’s view to the front or sides or control over the driving mechanism of the vehicle.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.418. OPENING VEHICLE DOORS. A person may not:
(1) open the door of a motor vehicle on the side available to moving traffic, unless the door may be opened in reasonable safety without interfering with the movement of other traffic; or
(2) leave a door on the side of a vehicle next to moving traffic open for longer than is necessary to load or unload a passenger.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.419. RIDING IN HOUSE TRAILER. A person may not occupy a house trailer while it is being moved.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.4191. PERSON RIDING IN TRAILER OR SEMITRAILER DRAWN BY TRUCK, ROAD TRACTOR, OR TRUCK TRACTOR. (a) A person may not operate a truck, road tractor, or truck tractor when another person occupies a trailer or semitrailer being drawn by the truck, road tractor, or truck tractor.
(b) It is a defense to prosecution under this section that:
(1) the person was operating or towing the vehicle:
(A) in a parade or in an emergency;
(B) to transport farmworkers from one field to another field on a farm-to-market road, ranch-to-market road, or county road outside a municipality; or
(C) in a hayride permitted by the governing body of or a law enforcement agency of each county or municipality in which the hayride will occur;
(2) the person operating or towing the vehicle did not know that another person occupied the trailer or semitrailer; or
(3) the person occupying the trailer or semitrailer was in a part of the trailer or semitrailer designed for human habitation.
(c) An offense under this section is a Class B misdemeanor.

Added by Acts 2003, 78th Leg., ch. 641, Sec. 1, eff. Sept. 1, 2003.

Sec. 545.420. RACING ON HIGHWAY. (a) A person may not participate in any manner in:
(1) a race;
(2) a vehicle speed competition or contest;
(3) a drag race or acceleration contest;
(4) a test of physical endurance of the operator of a vehicle; or
(5) in connection with a drag race, an exhibition of vehicle speed or acceleration or to make a vehicle speed record.
(b) In this section:
(1) “Drag race” means the operation of:
(A) two or more vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other; or
(B) one or more vehicles over a common selected course, from the same place to the same place, for the purpose of comparing the relative speeds or power of acceleration of the vehicle or vehicles in a specified distance or time.
(2) “Race” means the use of one or more vehicles in an attempt to:
(A) outgain or outdistance another vehicle or prevent another vehicle from passing;
(B) arrive at a given destination ahead of another vehicle or vehicles; or
(C) test the physical stamina or endurance of an operator over a long-distance driving route.
(c) [Blank]
(d) Except as provided by Subsections (e)-(h), an offense under Subsection (a) is a Class B misdemeanor.
(e) An offense under Subsection (a) is a Class A misdemeanor if it is shown on the trial of the offense that:
(1) the person has previously been convicted one time of an offense under that subsection; or
(2) the person, at the time of the offense:
(A) was operating the vehicle while intoxicated, as defined by Section 49.01, Penal Code; or
(B) was in possession of an open container, as defined by Section 49.031, Penal Code.
(f) An offense under Subsection (a) is a state jail felony if it is shown on the trial of the offense that the person has previously been convicted two times of an offense under that subsection.
(g) An offense under Subsection (a) is a felony of the third degree if it is shown on the trial of the offense that as a result of the offense, an individual suffered bodily injury.
(h) An offense under Subsection (a) is a felony of the second degree if it is shown on the trial of the offense that as a result of the offense, an individual suffered serious bodily injury or death.
(i) This subsection applies only to a motor vehicle used in the commission of an offense under this section that results in an accident with property damage or personal injury. A peace officer shall require the vehicle to be taken to the nearest licensed vehicle storage facility unless the vehicle is seized as evidence, in which case the vehicle may be taken to a storage facility as designated by the peace officer involved. Notwithstanding Article 18.23, Code of Criminal Procedure, the owner of a motor vehicle that is removed or stored under this subsection is liable for all removal and storage fees incurred and is not entitled to take possession of the vehicle until those fees are paid.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 2003, 78th Leg., ch. 535, Sec. 1, eff. Sept. 1, 2003.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 1258 (H.B. 548), Sec. 1, eff. September 1, 2009.

Sec. 545.421. FLEEING OR ATTEMPTING TO ELUDE POLICE OFFICER; OFFENSE. (a) A person commits an offense if the person operates a motor vehicle and wilfully fails or refuses to bring the vehicle to a stop or flees, or attempts to elude, a pursuing police vehicle when given a visual or audible signal to bring the vehicle to a stop.
(b) A signal under this section that is given by a police officer pursuing a vehicle may be by hand, voice, emergency light, or siren. The officer giving the signal must be in uniform and prominently display the officer’s badge of office. The officer’s vehicle must bear the insignia of a law enforcement agency, regardless of whether the vehicle displays an emergency light.
(c) Except as provided by Subsection (d), an offense under this section is a Class B misdemeanor.
(d) An offense under this section is a Class A misdemeanor if the person, during the commission of the offense, recklessly engages in conduct that places another in imminent danger of serious bodily injury.
(e) A person is presumed to have recklessly engaged in conduct placing another in imminent danger of serious bodily injury under Subsection (d) if the person while intoxicated knowingly operated a motor vehicle during the commission of the offense. In this subsection, “intoxicated” has the meaning assigned by Section 49.01, Penal Code.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 1280 (H.B. 1831), Sec. 1.21, eff. September 1, 2009.

Sec. 545.422. CROSSING SIDEWALK OR HIKE AND BIKE TRAIL. (a) A person may not drive a motor vehicle on a sidewalk, sidewalk area, or hike and bike trail except on a permanent or authorized temporary driveway.
(b) Subsection (a) does not prohibit the operation of a motor vehicle on a hike and bike trail in connection with maintenance of the trail.
(c) In this section, “hike and bike trail” means a trail designed for the exclusive use of pedestrians, bicyclists, or both.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.116(a), eff. Sept. 1, 1997.

Sec. 545.423. CROSSING PROPERTY. (a) An operator may not cross a sidewalk or drive through a driveway, parking lot, or business or residential entrance without stopping the vehicle.
(b) An operator may not cross or drive in or on a sidewalk, driveway, parking lot, or business or residential entrance at an intersection to turn right or left from one highway to another highway.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

Sec. 545.424. OPERATION OF VEHICLE BY PERSON UNDER 18 YEARS OF AGE. (a) A person under 18 years of age may not operate a motor vehicle while using a wireless communications device, except in case of emergency.
(a-1) A person under 18 years of age may not operate a motor vehicle:
(1) after midnight and before 5 a.m. unless the operation of the vehicle is necessary for the operator to attend or participate in employment or a school-related activity or because of a medical emergency; or
(2) with more than one passenger in the vehicle under 21 years of age who is not a family member.
(b) A person under 17 years of age who holds a restricted motorcycle license or moped license may not operate a motorcycle or moped while using a wireless communications device, except in case of emergency.
(b-1) A person under 17 years of age who holds a restricted motorcycle license or moped license, during the 12-month period following the issuance of an original motorcycle license or moped license to the person, may not operate a motorcycle or moped after midnight and before 5 a.m. unless:
(1) the person is in sight of the person’s parent or guardian; or
(2) the operation of the vehicle is necessary for the operator to attend or participate in employment or a school-related activity or because of a medical emergency.
(c) This section does not apply to:
(1) a person operating a motor vehicle while accompanied in the manner required by Section 521.222(d)(2) for the holder of an instruction permit; or
(2) a person licensed by the Federal Communications Commission to operate a wireless communication device or a radio frequency device.
(d) For the purposes of this section, employment includes work on a family farm by a member of the family that owns or operates the farm.
(e) A peace officer may not stop a vehicle or detain the operator of a vehicle for the sole purpose of determining whether the operator of the vehicle has violated this section.
(f) In this section, “wireless communication device” means a handheld or hands-free device that uses commercial mobile service, as defined by 47 U.S.C. Section 332.

Added by Acts 2001, 77th Leg., ch. 1251, Sec. 3, eff. Jan. 1, 2002.
Amended by:
Acts 2005, 79th Leg., Ch. 357 (S.B. 1257), Sec. 4, eff. September 1, 2005.
Acts 2009, 81st Leg., R.S., Ch. 1146 (H.B. 2730), Sec. 12.11, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1253 (H.B. 339), Sec. 18, eff. September 1, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 1160 (H.B. 2466), Sec. 4, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 716 (H.B. 3483), Sec. 5, eff. September 1, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 1101 (H.B. 3676), Sec. 1, eff. September 1, 2013.

Sec. 545.425. USE OF WIRELESS COMMUNICATION DEVICE IN A SCHOOL CROSSING ZONE OR WHILE OPERATING A SCHOOL BUS WITH A MINOR PASSENGER; OFFENSE. (a) In this section:
(1) “Hands-free device” means speakerphone capability or a telephone attachment or other piece of equipment, regardless of whether permanently installed in the motor vehicle, that allows use of the wireless communication device without use of either of the operator’s hands.
(2) “Wireless communication device” means a device that uses a commercial mobile service, as defined by 47 U.S.C. Section 332.
(b) Except as provided by Subsection (c), an operator may not use a wireless communication device while operating a motor vehicle within a school crossing zone, as defined by Section 541.302, Transportation Code, unless:
(1) the vehicle is stopped; or
(2) the wireless communication device is used with a hands-free device.
(b-1) Except as provided by Subsection (b-2), a municipality, county, or other political subdivision that enforces this section shall post a sign that complies with the standards described by this subsection at the entrance to each school crossing zone in the municipality, county, or other political subdivision. The department shall adopt standards that:
(1) allow for a sign required to be posted under this subsection to be attached to an existing sign at a minimal cost; and
(2) require that a sign required to be posted under this subsection inform an operator that:
(A) the use of a wireless communication device is prohibited in the school crossing zone; and
(B) the operator is subject to a fine if the operator uses a wireless communication device in the school crossing zone.
(b-2) A municipality, county, or other political subdivision that by ordinance or rule prohibits the use of a wireless communication device while operating a motor vehicle throughout the jurisdiction of the political subdivision is not required to post a sign as required by Subsection (b-1) if the political subdivision:
(1) posts signs that are located at each point at which a state highway, U.S. highway, or interstate highway enters the political subdivision and that state:
(A) that an operator is prohibited from using a wireless communication device while operating a motor vehicle in the political subdivision; and
(B) that the operator is subject to a fine if the operator uses a wireless communication device while operating a motor vehicle in the political subdivision; and
(2) subject to all applicable United States Department of Transportation Federal Highway Administration rules, posts a message that complies with Subdivision (1) on any dynamic message sign operated by the political subdivision located on a state highway, U.S. highway, or interstate highway in the political subdivision.
(b-3) A sign posted under Subsection (b-2)(1) must be readable to an operator traveling at the applicable speed limit.
(b-4) The political subdivision shall pay the costs associated with the posting of signs under Subsection (b-2).
(c) An operator may not use a wireless communication device while operating a passenger bus with a minor passenger on the bus unless the passenger bus is stopped.
(d) It is an affirmative defense to prosecution of an offense under this section that:
(1) the wireless communication device was used to make an emergency call to:
(A) an emergency response service, including a rescue, emergency medical, or hazardous material response service;
(B) a hospital;
(C) a fire department;
(D) a health clinic;
(E) a medical doctor’s office;
(F) an individual to administer first aid treatment; or
(G) a police department; or
(2) a sign required by Subsection (b-1) was not posted at the entrance to the school crossing zone at the time of an offense committed in the school crossing zone.
(d-1) The affirmative defense available in Subsection (d)(2) is not available for an offense under Subsection (b) committed in a school crossing zone located in a municipality, county, or other political subdivision that is in compliance with Subsection (b-2).
(e) This section does not apply to:
(1) an operator of an authorized emergency vehicle using a wireless communication device while acting in an official capacity; or
(2) an operator who is licensed by the Federal Communications Commission while operating a radio frequency device other than a wireless communication device.
(f) Except as provided by Subsection (b-2), this section preempts all local ordinances, rules, or regulations that are inconsistent with specific provisions of this section adopted by a political subdivision of this state relating to the use of a wireless communication device by the operator of a motor vehicle.

Added by Acts 2005, 79th Leg., Ch. 357 (S.B. 1257), Sec. 5, eff. September 1, 2005.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 1105 (H.B. 55), Sec. 1, eff. September 1, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 774 (H.B. 1899), Sec. 1, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 240 (H.B. 347), Sec. 1, eff. September 1, 2013.

Sec. 545.4252. USE OF WIRELESS COMMUNICATION DEVICE ON SCHOOL PROPERTY; OFFENSE. (a) In this section:
(1) “Hands-free device” has the meaning assigned by Section 545.425.
(2) “Wireless communication device” has the meaning assigned by Section 545.425.
(b) Except as provided by Section 545.425(c), an operator may not use a wireless communication device while operating a motor vehicle on the property of a public elementary, middle, junior high, or high school for which a local authority has designated a school crossing zone, during the time a reduced speed limit is in effect for the school crossing zone, unless:
(1) the vehicle is stopped; or
(2) the wireless communication device is used with a hands-free device.
(c) It is an affirmative defense to prosecution of an offense under this section that the wireless communication device was used to make an emergency call to:
(1) an emergency response service, including a rescue, emergency medical, or hazardous material response service;
(2) a hospital;
(3) a fire department;
(4) a health clinic;
(5) a medical doctor’s office;
(6) an individual to administer first aid treatment; or
(7) a police department.
(d) This section does not apply to:
(1) an operator of an authorized emergency vehicle using a wireless communication device while acting in an official capacity; or
(2) an operator who is licensed by the Federal Communications Commission while operating a radio frequency device other than a wireless communication device.
(e) This section preempts all local ordinances, rules, or regulations that are inconsistent with specific provisions of this section adopted by a political subdivision of this state relating to the use of a wireless communication device by the operator of a motor vehicle, except that a political subdivision may by ordinance or rule prohibit the use of a wireless communication device while operating a motor vehicle throughout the jurisdiction of the political subdivision.

Added by Acts 2013, 83rd Leg., R.S., Ch. 240 (H.B. 347), Sec. 2, eff. September 1, 2013.

Sec. 545.426. OPERATION OF SCHOOL BUS. (a) A person may not operate a school bus if:
(1) the door of the school bus is open; or
(2) the number of passengers on the bus is greater than the manufacturer’s design capacity for the bus.
(b) An operator of a school bus, while operating the bus, shall prohibit a passenger from:
(1) standing in the bus; or
(2) sitting:
(A) on the floor of the bus; or
(B) in any location on the bus that is not designed as a seat.
(c) The department may adopt rules necessary to administer and enforce this section.

Added by Acts 2007, 80th Leg., R.S., Ch. 923 (H.B. 3190), Sec. 5, eff. September 1, 2007.

Sec. 545.427. OPERATION OF VEHICLE WITH INSUFFICIENT UNDERCARRIAGE CLEARANCE. (a) An operator may not drive on or cross a railroad grade crossing unless the vehicle being operated has sufficient undercarriage clearance.
(b) An offense under this section is a misdemeanor punishable by a fine of not less than $50 or more than $200.

Added by Acts 2007, 80th Leg., R.S., Ch. 424 (S.B. 1372), Sec. 12, eff. January 1, 2008.
Renumbered from Transportation Code, Section 545.426 by Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 27.001(108), eff. September 1, 2009.

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

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Texas Statutes of Limitations of Personal Actions Under the Texas Civil Practice & Remedies Code, Section 16–Fort Worth, Texas Civil Litigation Lawyers

CIVIL PRACTICE AND REMEDIES CODE


TITLE 2. TRIAL, JUDGMENT, AND APPEAL


SUBTITLE B. TRIAL MATTERS


CHAPTER 16. LIMITATIONS


SUBCHAPTER A. LIMITATIONS OF PERSONAL ACTIONS


Sec. 16.001. EFFECT OF DISABILITY. (a) For the purposes of this subchapter, a person is under a legal disability if the person is:

(1) younger than 18 years of age, regardless of whether the person is married; or

(2) of unsound mind.

(b) If a person entitled to bring a personal action is under a legal disability when the cause of action accrues, the time of the disability is not included in a limitations period.

(c) A person may not tack one legal disability to another to extend a limitations period.

(d) A disability that arises after a limitations period starts does not suspend the running of the period.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 1049, Sec. 56, eff. Sept. 1, 1987.

Sec. 16.002. ONE-YEAR LIMITATIONS PERIOD. (a) A person must bring suit for malicious prosecution, libel, slander, or breach of promise of marriage not later than one year after the day the cause of action accrues.

(b) A person must bring suit to set aside a sale of property seized under Subchapter E, Chapter 33, Tax Code, not later than one year after the date the property is sold.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1995, 74th Leg., ch. 1017, Sec. 3, eff. Aug. 28, 1995.

Sec. 16.003. TWO-YEAR LIMITATIONS PERIOD. (a) Except as provided by Sections 16.010, 16.0031, and 16.0045, a person must bring suit for trespass for injury to the estate or to the property of another, conversion of personal property, taking or detaining the personal property of another, personal injury, forcible entry and detainer, and forcible detainer not later than two years after the day the cause of action accrues.

(b) A person must bring suit not later than two years after the day the cause of action accrues in an action for injury resulting in death. The cause of action accrues on the death of the injured person.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1995, 74th Leg., ch. 739, Sec. 2, eff. June 15, 1995; Acts 1997, 75th Leg., ch. 26, Sec. 2, eff. May 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch. 97 (S.B. 15), Sec. 3, eff. September 1, 2005.

Sec. 16.0031. ASBESTOS-RELATED OR SILICA-RELATED INJURIES. (a) In an action for personal injury or death resulting from an asbestos-related injury, as defined by Section 90.001, the cause of action accrues for purposes of Section 16.003 on the earlier of the following dates:

(1) the date of the exposed person’s death; or

(2) the date that the claimant serves on a defendant a report complying with Section 90.003 or 90.010(f).

(b) In an action for personal injury or death resulting from a silica-related injury, as defined by Section 90.001, the cause of action accrues for purposes of Section 16.003 on the earlier of the following dates:

(1) the date of the exposed person’s death; or

(2) the date that the claimant serves on a defendant a report complying with Section 90.004 or 90.010(f).

Added by Acts 2005, 79th Leg., Ch. 97 (S.B. 15), Sec. 4, eff. September 1, 2005.

Sec. 16.004. FOUR-YEAR LIMITATIONS PERIOD. (a) A person must bring suit on the following actions not later than four years after the day the cause of action accrues:

(1) specific performance of a contract for the conveyance of real property;

(2) penalty or damages on the penal clause of a bond to convey real property;

(3) debt;

(4) fraud; or

(5) breach of fiduciary duty.

(b) A person must bring suit on the bond of an executor, administrator, or guardian not later than four years after the day of the death, resignation, removal, or discharge of the executor, administrator, or guardian.

(c) A person must bring suit against his partner for a settlement of partnership accounts, and must bring an action on an open or stated account, or on a mutual and current account concerning the trade of merchandise between merchants or their agents or factors, not later than four years after the day that the cause of action accrues. For purposes of this subsection, the cause of action accrues on the day that the dealings in which the parties were interested together cease.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1999, 76th Leg., ch. 950, Sec. 1, eff. Aug. 30, 1999.

This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 189, 84th Legislature, Regular Session, for amendments affecting this section.


Sec. 16.0045. FIVE-YEAR LIMITATIONS PERIOD. (a) A person must bring suit for personal injury not later than five years after the day the cause of action accrues if the injury arises as a result of conduct that violates:

(1) Section 22.011, Penal Code (sexual assault);

(2) Section 22.021, Penal Code (aggravated sexual assault);

(3) Section 21.02, Penal Code (continuous sexual abuse of young child or children);

(4) Section 20A.02, Penal Code (trafficking of persons); or

(5) Section 43.05, Penal Code (compelling prostitution).

(b) In an action for injury resulting in death arising as a result of conduct described by Subsection (a), the cause of action accrues on the death of the injured person.

(c) The limitations period under this section is tolled for a suit on the filing of a petition by any person in an appropriate court alleging that the identity of the defendant in the suit is unknown and designating the unknown defendant as “John or Jane Doe.” The person filing the petition shall proceed with due diligence to discover the identity of the defendant and amend the petition by substituting the real name of the defendant for “John or Jane Doe” not later than the 30th day after the date that the defendant is identified to the plaintiff. The limitations period begins running again on the date that the petition is amended.

Added by Acts 1995, 74th Leg., ch. 739, Sec. 1, eff. June 15, 1995.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 593 (H.B. 8), Sec. 3.01, eff. September 1, 2007.

Acts 2011, 82nd Leg., R.S., Ch. 1 (S.B. 24), Sec. 3.01, eff. September 1, 2011.

Sec. 16.005. ACTION FOR CLOSING STREET OR ROAD. (a) A person must bring suit for any relief from the following acts not later than two years after the day the cause of action accrues:

(1) the passage by a governing body of an incorporated city or town of an ordinance closing and abandoning, or attempting to close and abandon, all or any part of a public street or alley in the city or town, other than a state highway; or

(2) the adoption by a commissioners court of an order closing and abandoning, or attempting to close and abandon, all or any part of a public road or thoroughfare in the county, other than a state highway.

(b) The cause of action accrues when the order or ordinance is passed or adopted.

(c) If suit is not brought within the period provided by this section, the person in possession of the real property receives complete title to the property by limitations and the right of the city or county to revoke or rescind the order or ordinance is barred.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.006. CARRIERS OF PROPERTY. (a) A carrier of property for compensation or hire must bring suit for the recovery of charges not later than three years after the day on which the cause of action accrues.

(b) Except as provided by Subsections (c) and (d), a person must bring suit for overcharges against a carrier of property for compensation or hire not later than three years after the cause of action accrues.

(c) If the person has presented a written claim for the overcharges within the three-year period, the limitations period is extended for six months from the date written notice is given by the carrier to the claimant of disallowance of the claim in whole or in part, as specified in the carrier’s notice.

(d) If on or before the expiration of the three-year period, the carrier brings an action under Subsection (a) to recover charges relating to the service or, without beginning an action, collects charges relating to that service, the limitations period is extended for 90 days from the day on which the action is begun or the charges are collected.

(e) A cause of action regarding a shipment of property accrues on the delivery or tender of the property by the carrier.

(f) In this section, “overcharge” means a charge for transportation services in excess of the lawfully applicable amount.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.007. RETURN OF EXECUTION. A person must bring suit against a sheriff or other officer or the surety of the sheriff or officer for failure to return an execution issued in the person’s favor, not later than five years after the date on which the execution was returnable.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.008. ARCHITECTS, ENGINEERS, INTERIOR DESIGNERS, AND LANDSCAPE ARCHITECTS FURNISHING DESIGN, PLANNING, OR INSPECTION OF CONSTRUCTION OF IMPROVEMENTS. (a) A person must bring suit for damages for a claim listed in Subsection (b) against a registered or licensed architect, engineer, interior designer, or landscape architect in this state, who designs, plans, or inspects the construction of an improvement to real property or equipment attached to real property, not later than 10 years after the substantial completion of the improvement or the beginning of operation of the equipment in an action arising out of a defective or unsafe condition of the real property, the improvement, or the equipment.

(b) This section applies to suit for:

(1) injury, damage, or loss to real or personal property;

(2) personal injury;

(3) wrongful death;

(4) contribution; or

(5) indemnity.

(c) If the claimant presents a written claim for damages, contribution, or indemnity to the architect, engineer, interior designer, or landscape architect within the 10-year limitations period, the period is extended for two years from the day the claim is presented.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1997, 75th Leg., ch. 860, Sec. 1, eff. Sept. 1, 1997.

Sec. 16.009. PERSONS FURNISHING CONSTRUCTION OR REPAIR OF IMPROVEMENTS. (a) A claimant must bring suit for damages for a claim listed in Subsection (b) against a person who constructs or repairs an improvement to real property not later than 10 years after the substantial completion of the improvement in an action arising out of a defective or unsafe condition of the real property or a deficiency in the construction or repair of the improvement.

(b) This section applies to suit for:

(1) injury, damage, or loss to real or personal property;

(2) personal injury;

(3) wrongful death;

(4) contribution; or

(5) indemnity.

(c) If the claimant presents a written claim for damages, contribution, or indemnity to the person performing or furnishing the construction or repair work during the 10-year limitations period, the period is extended for two years from the date the claim is presented.

(d) If the damage, injury, or death occurs during the 10th year of the limitations period, the claimant may bring suit not later than two years after the day the cause of action accrues.

(e) This section does not bar an action:

(1) on a written warranty, guaranty, or other contract that expressly provides for a longer effective period;

(2) against a person in actual possession or control of the real property at the time that the damage, injury, or death occurs; or

(3) based on wilful misconduct or fraudulent concealment in connection with the performance of the construction or repair.

(f) This section does not extend or affect a period prescribed for bringing an action under any other law of this state.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.010. MISAPPROPRIATION OF TRADE SECRETS. (a) A person must bring suit for misappropriation of trade secrets not later than three years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered.

(b) A misappropriation of trade secrets that continues over time is a single cause of action and the limitations period described by Subsection (a) begins running without regard to whether the misappropriation is a single or continuing act.

Added by Acts 1997, 75th Leg., ch. 26, Sec. 1, eff. May 1, 1997.

Sec. 16.011. SURVEYORS. (a) A person must bring suit for damages arising from an injury or loss caused by an error in a survey conducted by a registered public surveyor or a licensed state land surveyor:

(1) not later than 10 years after the date the survey is completed if the survey is completed on or after September 1, 1989; or

(2) not later than September 1, 1991, or 10 years after the date the survey was completed, whichever is later, if the survey was completed before September 1, 1989.

(b) If the claimant presents a written claim for damages to the surveyor during the 10-year limitations period, the period is extended for two years from the date the claim is presented.

(c) This section is a statute of repose and is independent of any other limitations period.

Added by Acts 1989, 71st Leg., ch. 1233, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 2001, 77th Leg., ch. 1173, Sec. 1, eff. Sept. 1, 2001.

Sec. 16.012. PRODUCTS LIABILITY. (a) In this section:

(1) “Claimant,” “seller,” and “manufacturer” have the meanings assigned by Section 82.001.

(2) “Products liability action” means any action against a manufacturer or seller for recovery of damages or other relief for harm allegedly caused by a defective product, whether the action is based in strict tort liability, strict products liability, negligence, misrepresentation, breach of express or implied warranty, or any other theory or combination of theories, and whether the relief sought is recovery of damages or any other legal or equitable relief, including a suit for:

(A) injury or damage to or loss of real or personal property;

(B) personal injury;

(C) wrongful death;

(D) economic loss; or

(E) declaratory, injunctive, or other equitable relief.

(b) Except as provided by Subsections (c), (d), and (d-1), a claimant must commence a products liability action against a manufacturer or seller of a product before the end of 15 years after the date of the sale of the product by the defendant.

(c) If a manufacturer or seller expressly warrants in writing that the product has a useful safe life of longer than 15 years, a claimant must commence a products liability action against that manufacturer or seller of the product before the end of the number of years warranted after the date of the sale of the product by that seller.

(d) This section does not apply to a products liability action seeking damages for personal injury or wrongful death in which the claimant alleges:

(1) the claimant was exposed to the product that is the subject of the action before the end of 15 years after the date the product was first sold;

(2) the claimant’s exposure to the product caused the claimant’s disease that is the basis of the action; and

(3) the symptoms of the claimant’s disease did not, before the end of 15 years after the date of the first sale of the product by the defendant, manifest themselves to a degree and for a duration that would put a reasonable person on notice that the person suffered some injury.

(d-1) This section does not reduce a limitations period for a cause of action described by Subsection (d) that accrues before the end of the limitations period under this section.

(e) This section does not extend the limitations period within which a products liability action involving the product may be commenced under any other law.

(f) This section applies only to the sale and not to the lease of a product.

(g) This section does not apply to any claim to which the General Aviation Revitalization Act of 1994 (Pub. L. No. 103-298, 108 Stat. 1552 (1994), reprinted in note, 49 U.S.C. Section 40101) or its exceptions are applicable.

Added by Acts 1993, 73rd Leg., ch. 5, Sec. 2, eff. Sept. 1, 1993. Amended by Acts 2003, 78th Leg., ch. 204, Sec. 5.01, eff. Sept. 1, 2003.

SUBCHAPTER B. LIMITATIONS OF REAL PROPERTY ACTIONS


Sec. 16.021. DEFINITIONS. In this subchapter:

(1) “Adverse possession” means an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.

(2) “Color of title” means a consecutive chain of transfers to the person in possession that:

(A) is not regular because of a muniment that is not properly recorded or is only in writing or because of a similar defect that does not want of intrinsic fairness or honesty; or

(B) is based on a certificate of headright, land warrant, or land scrip.

(3) “Peaceable possession” means possession of real property that is continuous and is not interrupted by an adverse suit to recover the property.

(4) “Title” means a regular chain of transfers of real property from or under the sovereignty of the soil.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.022. EFFECT OF DISABILITY. (a) For the purposes of this subchapter, a person is under a legal disability if the person is:

(1) younger than 18 years of age, regardless of whether the person is married;

(2) of unsound mind; or

(3) serving in the United States Armed Forces during time of war.

(b) If a person entitled to sue for the recovery of real property or entitled to make a defense based on the title to real property is under a legal disability at the time title to the property vests or adverse possession commences, the time of the disability is not included in a limitations period.

(c) Except as provided by Sections 16.027 and 16.028, after the termination of the legal disability, a person has the same time to present a claim that is allowed to others under this chapter.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 1049, Sec. 57, eff. Sept. 1, 1987.

Sec. 16.023. TACKING OF SUCCESSIVE INTERESTS. To satisfy a limitations period, peaceable and adverse possession does not need to continue in the same person, but there must be privity of estate between each holder and his successor.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.024. ADVERSE POSSESSION: THREE-YEAR LIMITATIONS PERIOD. A person must bring suit to recover real property held by another in peaceable and adverse possession under title or color of title not later than three years after the day the cause of action accrues.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.025. ADVERSE POSSESSION: FIVE-YEAR LIMITATIONS PERIOD. (a) A person must bring suit not later than five years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who:

(1) cultivates, uses, or enjoys the property;

(2) pays applicable taxes on the property; and

(3) claims the property under a duly registered deed.

(b) This section does not apply to a claim based on a forged deed or a deed executed under a forged power of attorney.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.026. ADVERSE POSSESSION: 10-YEAR LIMITATIONS PERIOD. (a) A person must bring suit not later than 10 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property.

(b) Without a title instrument, peaceable and adverse possession is limited in this section to 160 acres, including improvements, unless the number of acres actually enclosed exceeds 160. If the number of enclosed acres exceeds 160 acres, peaceable and adverse possession extends to the real property actually enclosed.

(c) Peaceable possession of real property held under a duly registered deed or other memorandum of title that fixes the boundaries of the possessor’s claim extends to the boundaries specified in the instrument.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1989, 71st Leg., ch. 764, Sec. 1, eff. Sept. 1, 1989.

Sec. 16.027. ADVERSE POSSESSION: 25-YEAR LIMITATIONS PERIOD NOTWITHSTANDING DISABILITY. A person, regardless of whether the person is or has been under a legal disability, must bring suit not later than 25 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.028. ADVERSE POSSESSION WITH RECORDED INSTRUMENT: 25-YEAR LIMITATIONS PERIOD. (a) A person, regardless of whether the person is or has been under a legal disability, may not maintain an action for the recovery of real property held for 25 years before the commencement of the action in peaceable and adverse possession by another who holds the property in good faith and under a deed or other instrument purporting to convey the property that is recorded in the deed records of the county where any part of the real property is located.

(b) Adverse possession of any part of the real property held under a recorded deed or other recorded instrument that purports to convey the property extends to and includes all of the property described in the instrument, even though the instrument is void on its face or in fact.

(c) A person who holds real property and claims title under this section has a good and marketable title to the property regardless of a disability arising at any time in the adverse claimant or a person claiming under the adverse claimant.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.029. EVIDENCE OF TITLE TO LAND BY LIMITATIONS. (a) In a suit involving title to real property that is not claimed by this state, it is prima facie evidence that the title to the property has passed from the person holding apparent record title to an opposing party if it is shown that:

(1) for one or more years during the 25 years preceding the filing of the suit the person holding apparent record title to the property did not exercise dominion over or pay taxes on the property; and

(2) during that period the opposing parties and those whose estate they own have openly exercised dominion over and have asserted a claim to the land and have paid taxes on it annually before becoming delinquent for as long as 25 years.

(b) This section does not affect a statute of limitations, a right to prove title by circumstantial evidence under the case law of this state, or a suit between a trustee and a beneficiary of the trust.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.030. TITLE THROUGH ADVERSE POSSESSION. (a) If an action for the recovery of real property is barred under this chapter, the person who holds the property in peaceable and adverse possession has full title, precluding all claims.

(b) A person may not acquire through adverse possession any right or title to real property dedicated to public use.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.031. ENCLOSED LAND. (a) A tract of land that is owned by one person and that is entirely surrounded by land owned, claimed, or fenced by another is not considered enclosed by a fence that encloses any part of the surrounding land.

(b) Possession of the interior tract by the owner or claimant of the surrounding land is not peaceable and adverse possession as described by Section 16.026 unless:

(1) the interior tract is separated from the surrounding land by a fence; or

(2) at least one-tenth of the interior tract is cultivated and used for agricultural purposes or is used for manufacturing purposes.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.032. ADJACENT LAND. Possession of land that belongs to another by a person owning or claiming 5,000 or more fenced acres that adjoin the land is not peaceable and adverse as described by Section 16.026 unless:

(1) the land is separated from the adjacent enclosed tract by a substantial fence;

(2) at least one-tenth of the land is cultivated and used for agricultural purposes or used for manufacturing purposes; or

(3) there is actual possession of the land.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.033. TECHNICAL DEFECTS IN INSTRUMENT. (a) A person with a right of action for the recovery of real property or an interest in real property conveyed by an instrument with one of the following defects must bring suit not later than two years after the day the instrument was filed for record with the county clerk of the county where the real property is located:

(1) lack of the signature of a proper corporate officer, partner, or company officer, manager, or member;

(2) lack of a corporate seal;

(3) failure of the record to show the corporate seal used;

(4) failure of the record to show authority of the board of directors or stockholders of a corporation, partners of a partnership, or officers, managers, or members of a company;

(5) execution and delivery of the instrument by a corporation, partnership, or other company that had been dissolved, whose charter had expired, or whose franchise had been canceled, withdrawn, or forfeited;

(6) acknowledgment of the instrument in an individual, rather than a representative or official, capacity;

(7) execution of the instrument by a trustee without record of the authority of the trustee or proof of the facts recited in the instrument;

(8) failure of the record or instrument to show an acknowledgment or jurat that complies with applicable law; or

(9) wording of the stated consideration that may or might create an implied lien in favor of the grantor.

(b) This section does not apply to a forged instrument.

(c) For the purposes of this section, an instrument affecting real property containing a ministerial defect, omission, or informality in the certificate of acknowledgment that has been filed for record for longer than two years in the office of the county recorder of the county in which the property is located is considered to have been lawfully recorded and to be notice of the existence of the instrument on and after the date the instrument is filed.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1993, 73rd Leg., ch. 291, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 819 (S.B. 1781), Sec. 1, eff. June 15, 2007.

Sec. 16.034. ATTORNEY’S FEES. (a) In a suit for the possession of real property between a person claiming under record title to the property and one claiming by adverse possession, if the prevailing party recovers possession of the property from a person unlawfully in actual possession, the court:

(1) shall award costs and reasonable attorney’s fees to the prevailing party if the court finds that the person unlawfully in actual possession made a claim of adverse possession that was groundless and made in bad faith; and

(2) may award costs and reasonable attorney’s fees to the prevailing party in the absence of a finding described by Subdivision (1).

(b) To recover attorney’s fees, the person seeking possession must give the person unlawfully in possession a written demand for that person to vacate the premises. The demand must be given by registered or certified mail at least 10 days before filing the claim for recovery of possession.

(c) The demand must state that if the person unlawfully in possession does not vacate the premises within 10 days and a claim is filed by the person seeking possession, the court may enter a judgment against the person unlawfully in possession for costs and attorney’s fees in an amount determined by the court to be reasonable.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 901 (H.B. 556), Sec. 1, eff. September 1, 2009.

Sec. 16.035. LIEN ON REAL PROPERTY. (a) A person must bring suit for the recovery of real property under a real property lien or the foreclosure of a real property lien not later than four years after the day the cause of action accrues.

(b) A sale of real property under a power of sale in a mortgage or deed of trust that creates a real property lien must be made not later than four years after the day the cause of action accrues.

(c) The running of the statute of limitations is not suspended against a bona fide purchaser for value, a lienholder, or a lessee who has no notice or knowledge of the suspension of the limitations period and who acquires an interest in the property when a cause of action on an outstanding real property lien has accrued for more than four years, except as provided by:

(1) Section 16.062, providing for suspension in the event of death; or

(2) Section 16.036, providing for recorded extensions of real property liens.

(d) On the expiration of the four-year limitations period, the real property lien and a power of sale to enforce the real property lien become void.

(e) If a series of notes or obligations or a note or obligation payable in installments is secured by a real property lien, the four-year limitations period does not begin to run until the maturity date of the last note, obligation, or installment.

(f) The limitations period under this section is not affected by Section 3.118, Business & Commerce Code.

(g) In this section, “real property lien” means:

(1) a superior title retained by a vendor in a deed of conveyance or a purchase money note; or

(2) a vendor’s lien, a mortgage, a deed of trust, a voluntary mechanic’s lien, or a voluntary materialman’s lien on real estate, securing a note or other written obligation.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1997, 75th Leg., ch. 219, Sec. 1, eff. May 23, 1997.

Sec. 16.036. EXTENSION OF REAL PROPERTY LIEN. (a) The party or parties primarily liable for a debt or obligation secured by a real property lien, as that term is defined in Section 16.035, may suspend the running of the four-year limitations period for real property liens through a written extension agreement as provided by this section.

(b) The limitations period is suspended and the lien remains in effect for four years after the extended maturity date of the debt or obligation if the extension agreement is:

(1) signed and acknowledged as provided by law for a deed conveying real property; and

(2) filed for record in the county clerk’s office of the county where the real property is located.

(c) The parties may continue to extend the lien by entering, acknowledging, and recording additional extension agreements.

(d) The maturity date stated in the original instrument or in the date of the recorded renewal and extension is conclusive evidence of the maturity date of the debt or obligation.

(e) The limitations period under this section is not affected by Section 3.118, Business & Commerce Code.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1997, 75th Leg., ch. 219, Sec. 2, eff. May 23, 1997.

Sec. 16.037. EFFECT OF EXTENSION OF REAL PROPERTY LIEN ON THIRD PARTIES. An extension agreement is void as to a bona fide purchaser for value, a lienholder, or a lessee who deals with real property affected by a real property lien without actual notice of the agreement and before the agreement is acknowledged, filed, and recorded.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1997, 75th Leg., ch. 219, Sec. 3, eff. May 23, 1997.

SUBCHAPTER C. RESIDUAL LIMITATIONS PERIOD


Sec. 16.051. RESIDUAL LIMITATIONS PERIOD. Every action for which there is no express limitations period, except an action for the recovery of real property, must be brought not later than four years after the day the cause of action accrues.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

SUBCHAPTER D. MISCELLANEOUS PROVISIONS


Sec. 16.061. RIGHTS NOT BARRED. (a) A right of action of this state or a political subdivision of the state, including a county, an incorporated city or town, a navigation district, a municipal utility district, a port authority, an entity acting under Chapter 54, Transportation Code, a school district, or an entity created under Section 52, Article III, or Section 59, Article XVI, Texas Constitution, is not barred by any of the following sections: 16.001-16.004, 16.006, 16.007, 16.021-16.028, 16.030-16.032, 16.035-16.037, 16.051, 16.062, 16.063, 16.065-16.067, 16.070, 16.071, 31.006, or 71.021.

(b) In this section:

(1) “Navigation district” means a navigation district organized under Section 52, Article III, or Section 59, Article XVI, Texas Constitution.

(2) “Port authority” has the meaning assigned by Section 60.402, Water Code.

(3) “Municipal utility district” means a municipal utility district created under Section 52, Article III, or Section 59, Article XVI, Texas Constitution.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1989, 71st Leg., ch. 2, Sec. 4.02, eff. Aug. 28, 1989; Acts 1993, 73rd Leg., ch. 782, Sec. 1, eff. Aug. 30, 1993; Acts 1997, 75th Leg., ch. 1070, Sec. 47, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1420, Sec. 8.204, eff. Sept. 1, 2001.

Sec. 16.062. EFFECT OF DEATH. (a) The death of a person against whom or in whose favor there may be a cause of action suspends the running of an applicable statute of limitations for 12 months after the death.

(b) If an executor or administrator of a decedent’s estate qualifies before the expiration of the period provided by this section, the statute of limitations begins to run at the time of the qualification.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.063. TEMPORARY ABSENCE FROM STATE. The absence from this state of a person against whom a cause of action may be maintained suspends the running of the applicable statute of limitations for the period of the person’s absence.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.064. EFFECT OF LACK OF JURISDICTION. (a) The period between the date of filing an action in a trial court and the date of a second filing of the same action in a different court suspends the running of the applicable statute of limitations for the period if:

(1) because of lack of jurisdiction in the trial court where the action was first filed, the action is dismissed or the judgment is set aside or annulled in a direct proceeding; and

(2) not later than the 60th day after the date the dismissal or other disposition becomes final, the action is commenced in a court of proper jurisdiction.

(b) This section does not apply if the adverse party has shown in abatement that the first filing was made with intentional disregard of proper jurisdiction.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.065. ACKNOWLEDGMENT OF CLAIM. An acknowledgment of the justness of a claim that appears to be barred by limitations is not admissible in evidence to defeat the law of limitations if made after the time that the claim is due unless the acknowledgment is in writing and is signed by the party to be charged.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.066. ACTION ON FOREIGN JUDGMENT. (a) An action on a foreign judgment is barred in this state if the action is barred under the laws of the jurisdiction where rendered.

(b) An action against a person who has resided in this state for 10 years prior to the action may not be brought on a foreign judgment rendered more than 10 years before the commencement of the action in this state.

(c) In this section “foreign judgment” means a judgment or decree rendered in another state or a foreign country.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.067. CLAIM INCURRED PRIOR TO ARRIVAL IN THIS STATE. (a) A person may not bring an action to recover a claim against a person who has moved to this state if the claim is barred by the law of limitations of the state or country from which the person came.

(b) A person may not bring an action to recover money from a person who has moved to this state and who was released from its payment by the bankruptcy or insolvency laws of the state or country from which the person came.

(c) A demand that is against a person who has moved to this state and was incurred prior to his arrival in this state is not barred by the law of limitations until the person has lived in this state for 12 months. This subsection does not affect the application of Subsections (a) and (b).

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.068. AMENDED AND SUPPLEMENTAL PLEADINGS. If a filed pleading relates to a cause of action, cross action, counterclaim, or defense that is not subject to a plea of limitation when the pleading is filed, a subsequent amendment or supplement to the pleading that changes the facts or grounds of liability or defense is not subject to a plea of limitation unless the amendment or supplement is wholly based on a new, distinct, or different transaction or occurrence.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.069. COUNTERCLAIM OR CROSS CLAIM. (a) If a counterclaim or cross claim arises out of the same transaction or occurrence that is the basis of an action, a party to the action may file the counterclaim or cross claim even though as a separate action it would be barred by limitation on the date the party’s answer is required.

(b) The counterclaim or cross claim must be filed not later than the 30th day after the date on which the party’s answer is required.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.070. CONTRACTUAL LIMITATIONS PERIOD. (a) Except as provided by Subsection (b), a person may not enter a stipulation, contract, or agreement that purports to limit the time in which to bring suit on the stipulation, contract, or agreement to a period shorter than two years. A stipulation, contract, or agreement that establishes a limitations period that is shorter than two years is void in this state.

(b) This section does not apply to a stipulation, contract, or agreement relating to the sale or purchase of a business entity if a party to the stipulation, contract, or agreement pays or receives or is obligated to pay or entitled to receive consideration under the stipulation, contract, or agreement having an aggregate value of not less than $500,000.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1991, 72nd Leg., ch. 840, Sec. 2, eff. Aug. 26, 1991.

Sec. 16.071. NOTICE REQUIREMENTS. (a) A contract stipulation that requires a claimant to give notice of a claim for damages as a condition precedent to the right to sue on the contract is not valid unless the stipulation is reasonable. A stipulation that requires notification within less than 90 days is void.

(b) If notice is required, the claimant may notify any convenient agent of the company that requires the notice.

(c) A contract stipulation between the operator of a railroad, street railway, or interurban railroad and an employee or servant of the operator is void if it requires as a condition precedent to liability:

(1) the employee or servant to notify the system of a claim for damages for personal injury caused by negligence; or

(2) the spouse, parent, or child of a deceased employee or servant to notify the system of a claim of death caused by negligence.

(d) This section applies to a contract between a federal prime contractor and a subcontractor, except that the notice period stipulated in the subcontract may be for a period not less than the period stipulated in the prime contract, minus seven days.

(e) In a suit covered by this section or Section 16.070, it is presumed that any required notice has been given unless lack of notice is specifically pleaded under oath.

(f) This section does not apply to a contract relating to the sale or purchase of a business entity if a party to the contract pays or receives or is obligated to pay or receive consideration under the contract having an aggregate value of not less than $500,000.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1991, 72nd Leg., ch. 840, Sec. 3, eff. Aug. 26, 1991.

Sec. 16.072. SATURDAY, SUNDAY, OR HOLIDAY. If the last day of a limitations period under any statute of limitations falls on a Saturday, Sunday, or holiday, the period for filing suit is extended to include the next day that the county offices are open for business.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

 

Workplace Safety and Health Requirements of OSHA for Texas Employers–TWC–Fort Worth, Texas Non Subscriber Defense Lawyers

 

  1. The nation’s main workplace safety and health law is the Occupational Safety and Health Act of 1970, which requires all private-sector employers to furnish a safe workplace, free of recognized hazards, to their employees, and requires employers and employees to comply with occupational safety and health standards adopted by the U.S. Department of Labor’s OSHA division (for the main duty clause of OSHA, see 29 U.S.C. § 654).
  2. The complete listing of DOL’s OSHA regulations is found at http://www.osha.gov/pls/oshaweb/owasrch.search_form?p_doc_type=STANDARDS&p_toc_level=0&p_keyvalue=.
  3. Compliance with OSHA standards can not only help prevent needless workplace tragedies from accidents, but also help minimize the number of injury-related employee absences, keep workers’ compensation and other insurance costs to a minimum, and promote higher productivity from employees who can feel secure that the company is looking out for their safety and can thus concentrate on doing their jobs well.
  4. A myth about OSHA is that the regulations are too complex to understand. Although the regulations are numerous and occasionally very comprehensive and detailed, almost all of them stem directly from common sense, best practices, and what experienced and prudent employees would do in their jobs anyway. For example, the regulations require such things as wearing seat belts when driving vehicles or operating machines with seats, ensuring that safe scaffolding and fall protection are in place for employees working at heights, wearing goggles or other face protection during welding or while working with abrasive materials, using cave-in protection when working in trenches, using guards on any tools with moving blades, using guards and other protective barriers on machines with large moving parts, providing kill switches on machinery for immediate shut-off if anything goes wrong, providing adequate ventilation for workers in enclosed areas where fumes are present, protecting health-care workers from accidental pricks from needles and other sharp medical instruments, avoiding sparks near flammable materials, and so on.
  5. Although employers have the right to take appropriate corrective action toward employees who violate known safety rules, OSHA protects an employee’s right to report workplace safety concerns and violations of safety rules, and an employer that retaliates in any way against an employee who reports safety-related problems or participates in an OSHA-related investigation is subject to enforcement action in court by DOL (see 29 U.S.C. § 660(c)(1, 2)).
  6. Non-willful violations can result in civil penalties, which become more substantial for serious or repeated violations, and willful violations can result in both civil penalties and imprisonment for those responsible, depending upon the severity of the violation.
  7. Violations of OSHA are not necessarily enough to prove an employer’s negligence as a matter of law in a civil lawsuit arising from a workplace injury, but can be used as evidence of negligence. Similarly, evidence of compliance with OSHA may not be sufficient to avoid liability in such a lawsuit, and compliance is certainly not enough to prevent a workers’ compensation claim from being filed, since workers’ compensation claims are generally handled without regard to issues of fault. See 29 U.S.C. § 653(b)(4).
  8. Child labor presents special safety issues under both Texas and federal laws. Regardless of how safe a workplace may be for adult employees or how much in compliance with OSHA an employer may be, children may not perform hazardous duties or work during restricted times. A complete list of prohibited duties and restrictions on hours of work for children under both Texas and federal laws appears on the Texas child labor law poster available for free downloading at http://www.twc.state.tx.us/ui/lablaw/llcl70.pdf (PDF). For more information on child labor laws, see the topic “Child Labor” in this outline in part II of this book.
  9. OSHA’s official PowerPoint and video presentations for workplace safety education in various industries are excellent training tools for employers and employees alike and are available for free downloading at http://www.osha.gov/SLTC/multimedia.html. The department’s self-guided study and training tools are available on the OSHA eTools page. In addition, OSHA offers free compliance training and consultation to small and medium-size businesses – see OSHA’s On-site Consultation page for details.
  10. The state agency in Texas with the greatest authority in the area of workplace safety is the Texas Department of Insurance, the Division of Workers’ Compensation of which has enforcement responsibility for the Texas Workers’ Compensation Act (for the general provisions of that law, see Chapter 401 of the Texas Labor Code). The main workplace safety resource information for Texas is on the TDI website at http://www.tdi.state.tx.us/wc/safety/index.html. The Workers’ Compensation Division’s OSHCON Department provides workplace safety and health consultations to Texas employers, including free OSHA compliance assistance – their website is at http://www.tdi.texas.gov/oshcon/.
  11. As with many federal laws, OSHA does not preempt state laws that provide a greater degree of protection or benefit for employees – thus, in Texas the following laws are examples of state-level workplace safety and health laws (this is not a complete list of state laws affecting workplace safety and health – many occupations regulated under the Occupations Code have safety-related laws in the chapters for those occupations):
    1. Texas Health and Safety Code, Section 81.042 – duty of some employers to report certain communicable diseases (PDF) to local health authorities or to the Texas Department of State Health Services at 1-800-705-8868
    2. Texas Health and Safety Code, Chapter 256 – Safe Patient Handling and Movement Practices
    3. Texas Health and Safety Code, Chapter 437 – Regulation of Food Service Establishments, Retail Food Stores, Mobile Food Units, and Roadside Food Vendors
    4. Texas Health and Safety Code, Chapter 502 – Hazard Communication Act
    5. Texas Labor Code, Chapter 51 – Employment of Children
    6. Texas Labor Code, Chapter 52 – Miscellaneous Restrictions
    7. Texas Workers’ Compensation Act, Texas Labor Code, Chapter 401, et seq.
    8. Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.Martindale AVtexas[2]

Proportionate Responsibility Statute in Texas Civil Litigation– Fort Worth, Texas Insurance Defense Litigation Lawyers

TEXAS CIVIL PRACTICE AND REMEDIES CODE CHAPTER 33. PROPORTIONATE RESPONSIBILITY

CIVIL PRACTICE AND REMEDIES CODE


 

TITLE 2. TRIAL, JUDGMENT, AND APPEAL

 


SUBTITLE C. JUDGMENTS


 

CHAPTER 33. PROPORTIONATE RESPONSIBILITY

 


SUBCHAPTER A. PROPORTIONATE RESPONSIBILITY


 

 

Sec. 33.001. PROPORTIONATE RESPONSIBILITY. In an action to which this chapter applies, a claimant may not recover damages if his percentage of responsibility is greater than 50 percent.

 

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.04, eff. Sept. 2, 1987; Acts 1995, 74th Leg., ch. 136, Sec. 1, eff. Sept. 1, 1995.

 

 

Sec. 33.002. APPLICABILITY. (a) This chapter applies to:

 

(1) any cause of action based on tort in which a defendant, settling person, or responsible third party is found responsible for a percentage of the harm for which relief is sought; or

 

(2) any action brought under the Deceptive Trade Practices-Consumer Protection Act (Subchapter E, Chapter 17, Business & Commerce Code) in which a defendant, settling person, or responsible third party is found responsible for a percentage of the harm for which relief is sought.

 

(b) Repealed by Acts 2003, 78th Leg., ch. 204, Sec. 4.10(1).

 

(c) This chapter does not apply to:

 

(1) an action to collect workers’ compensation benefits under the workers’ compensation laws of this state (Subtitle A, Title 5, Labor Code) or actions against an employer for exemplary damages arising out of the death of an employee;

 

(2) a claim for exemplary damages included in an action to which this chapter otherwise applies; or

 

(3) a cause of action for damages arising from the manufacture of methamphetamine as described by Chapter 99.

 

(d) to (h) Repealed by Acts 2003, 78th Leg., ch. 204, Sec. 4.10(1).

 

Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.05, eff. Sept. 2, 1987. Amended by Acts 1989, 71st Leg., ch. 380, Sec. 4, eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 136, Sec. 1, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 414, Sec. 17, eff. Sept. 1, 1995; Acts 2001, 77th Leg., ch. 643, Sec. 2, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 204, Sec. 4.01, 4.10(1), eff. Sept. 1, 2003.

 

 

Sec. 33.003. DETERMINATION OF PERCENTAGE OF RESPONSIBILITY. (a) The trier of fact, as to each cause of action asserted, shall determine the percentage of responsibility, stated in whole numbers, for the following persons with respect to each person’s causing or contributing to cause in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these:

 

(1) each claimant;

 

(2) each defendant;

 

(3) each settling person; and

 

(4) each responsible third party who has been designated under Section 33.004.

 

(b) This section does not allow a submission to the jury of a question regarding conduct by any person without sufficient evidence to support the submission.

 

Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.06, eff. Sept. 2, 1987. Amended by Acts 1995, 74th Leg., ch. 136, Sec. 1, eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 204, Sec. 4.02, eff. Sept. 1, 2003.

 

 

Sec. 33.004. DESIGNATION OF RESPONSIBLE THIRD PARTY. (a) A defendant may seek to designate a person as a responsible third party by filing a motion for leave to designate that person as a responsible third party. The motion must be filed on or before the 60th day before the trial date unless the court finds good cause to allow the motion to be filed at a later date.

 

(b) Nothing in this section affects the third-party practice as previously recognized in the rules and statutes of this state with regard to the assertion by a defendant of rights to contribution or indemnity. Nothing in this section affects the filing of cross-claims or counterclaims.

 

(c) Repealed by Acts 2003, 78th Leg., ch. 204, Sec. 4.10(2).

 

(d) A defendant may not designate a person as a responsible third party with respect to a claimant’s cause of action after the applicable limitations period on the cause of action has expired with respect to the responsible third party if the defendant has failed to comply with its obligations, if any, to timely disclose that the person may be designated as a responsible third party under the Texas Rules of Civil Procedure.

 

(e) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 203, Sec. 5.02, eff. September 1, 2011.

 

(f) A court shall grant leave to designate the named person as a responsible third party unless another party files an objection to the motion for leave on or before the 15th day after the date the motion is served.

 

(g) If an objection to the motion for leave is timely filed, the court shall grant leave to designate the person as a responsible third party unless the objecting party establishes:

 

(1) the defendant did not plead sufficient facts concerning the alleged responsibility of the person to satisfy the pleading requirement of the Texas Rules of Civil Procedure; and

 

(2) after having been granted leave to replead, the defendant failed to plead sufficient facts concerning the alleged responsibility of the person to satisfy the pleading requirements of the Texas Rules of Civil Procedure.

 

(h) By granting a motion for leave to designate a person as a responsible third party, the person named in the motion is designated as a responsible third party for purposes of this chapter without further action by the court or any party.

 

(i) The filing or granting of a motion for leave to designate a person as a responsible third party or a finding of fault against the person:

 

(1) does not by itself impose liability on the person; and

 

(2) may not be used in any other proceeding, on the basis of res judicata, collateral estoppel, or any other legal theory, to impose liability on the person.

 

(j) Notwithstanding any other provision of this section, if, not later than 60 days after the filing of the defendant’s original answer, the defendant alleges in an answer filed with the court that an unknown person committed a criminal act that was a cause of the loss or injury that is the subject of the lawsuit, the court shall grant a motion for leave to designate the unknown person as a responsible third party if:

 

(1) the court determines that the defendant has pleaded facts sufficient for the court to determine that there is a reasonable probability that the act of the unknown person was criminal;

 

(2) the defendant has stated in the answer all identifying characteristics of the unknown person, known at the time of the answer; and

 

(3) the allegation satisfies the pleading requirements of the Texas Rules of Civil Procedure.

 

(k) An unknown person designated as a responsible third party under Subsection (j) is denominated as “Jane Doe” or “John Doe” until the person’s identity is known.

 

(l) After adequate time for discovery, a party may move to strike the designation of a responsible third party on the ground that there is no evidence that the designated person is responsible for any portion of the claimant’s alleged injury or damage. The court shall grant the motion to strike unless a defendant produces sufficient evidence to raise a genuine issue of fact regarding the designated person’s responsibility for the claimant’s injury or damage.

 

Added by Acts 1995, 74th Leg., ch. 136, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 2003, 78th Leg., ch. 204, Sec. 4.03, 4.04, 4.10(2), eff. Sept. 1, 2003.

 

Amended by:

 

Acts 2011, 82nd Leg., R.S., Ch. 203 (H.B. 274), Sec. 5.01, eff. September 1, 2011.

 

Acts 2011, 82nd Leg., R.S., Ch. 203 (H.B. 274), Sec. 5.02, eff. September 1, 2011.

 

 

SUBCHAPTER B. CONTRIBUTION

 


Sec. 33.011. DEFINITIONS. In this chapter:

(1) “Claimant” means a person seeking recovery of damages, including a plaintiff, counterclaimant, cross-claimant, or third-party plaintiff. In an action in which a party seeks recovery of damages for injury to another person, damage to the property of another person, death of another person, or other harm to another person, “claimant” includes:

(A) the person who was injured, was harmed, or died or whose property was damaged; and

(B) any person who is seeking, has sought, or could seek recovery of damages for the injury, harm, or death of that person or for the damage to the property of that person.

(2) “Defendant” includes any person from whom, at the time of the submission of the case to the trier of fact, a claimant seeks recovery of damages.

(3) “Liable defendant” means a defendant against whom a judgment can be entered for at least a portion of the damages awarded to the claimant.

(4) “Percentage of responsibility” means that percentage, stated in whole numbers, attributed by the trier of fact to each claimant, each defendant, each settling person, or each responsible third party with respect to causing or contributing to cause in any way, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity violative of the applicable legal standard, or by any combination of the foregoing, the personal injury, property damage, death, or other harm for which recovery of damages is sought.

(5) “Settling person” means a person who has, at any time, paid or promised to pay money or anything of monetary value to a claimant in consideration of potential liability with respect to the personal injury, property damage, death, or other harm for which recovery of damages is sought.

(6) “Responsible third party” means any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these. The term “responsible third party” does not include a seller eligible for indemnity under Section 82.002.

(7) Repealed by Acts 2003, 78th Leg., ch. 204, Sec. 4.10(3).

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.07, eff. Sept. 2, 1987; Acts 1995, 74th Leg., ch. 136, Sec. 1, eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 204, Sec. 4.05, 4.10(3), eff. Sept. 1, 2003.

Sec. 33.012. AMOUNT OF RECOVERY. (a) If the claimant is not barred from recovery under Section 33.001, the court shall reduce the amount of damages to be recovered by the claimant with respect to a cause of action by a percentage equal to the claimant’s percentage of responsibility.

(b) If the claimant has settled with one or more persons, the court shall further reduce the amount of damages to be recovered by the claimant with respect to a cause of action by the sum of the dollar amounts of all settlements.

(c) Notwithstanding Subsection (b), if the claimant in a health care liability claim filed under Chapter 74 has settled with one or more persons, the court shall further reduce the amount of damages to be recovered by the claimant with respect to a cause of action by an amount equal to one of the following, as elected by the defendant:

(1) the sum of the dollar amounts of all settlements; or

(2) a percentage equal to each settling person’s percentage of responsibility as found by the trier of fact.

(d) An election made under Subsection (c) shall be made by any defendant filing a written election before the issues of the action are submitted to the trier of fact and when made, shall be binding on all defendants. If no defendant makes this election or if conflicting elections are made, all defendants are considered to have elected Subsection (c)(1).

(e) This section shall not apply to benefits paid by or on behalf of an employer to an employee pursuant to workers’ compensation insurance coverage, as defined in Section 401.011(44), Labor Code, in effect at the time of the act, event, or occurrence made the basis of claimant’s suit.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.08, eff. Sept. 2, 1987; Acts 1995, 74th Leg., ch. 136, Sec. 1, eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 204, Sec. 4.06, 4.10(4), eff. Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch. 277 (S.B. 890), Sec. 1, eff. June 9, 2005.

Acts 2005, 79th Leg., Ch. 728 (H.B. 2018), Sec. 23.001(6), eff. September 1, 2005.

Sec. 33.013. AMOUNT OF LIABILITY. (a) Except as provided in Subsection (b), a liable defendant is liable to a claimant only for the percentage of the damages found by the trier of fact equal to that defendant’s percentage of responsibility with respect to the personal injury, property damage, death, or other harm for which the damages are allowed.

(b) Notwithstanding Subsection (a), each liable defendant is, in addition to his liability under Subsection (a), jointly and severally liable for the damages recoverable by the claimant under Section 33.012 with respect to a cause of action if:

(1) the percentage of responsibility attributed to the defendant with respect to a cause of action is greater than 50 percent; or

(2) the defendant, with the specific intent to do harm to others, acted in concert with another person to engage in the conduct described in the following provisions of the Penal Code and in so doing proximately caused the damages legally recoverable by the claimant:

(A) Section 19.02 (murder);

(B) Section 19.03 (capital murder);

(C) Section 20.04 (aggravated kidnapping);

(D) Section 22.02 (aggravated assault);

(E) Section 22.011 (sexual assault);

(F) Section 22.021 (aggravated sexual assault);

(G) Section 22.04 (injury to a child, elderly individual, or disabled individual);

(H) Section 32.21 (forgery);

(I) Section 32.43 (commercial bribery);

(J) Section 32.45 (misapplication of fiduciary property or property of financial institution);

(K) Section 32.46 (securing execution of document by deception);

(L) Section 32.47 (fraudulent destruction, removal, or concealment of writing);

(M) conduct described in Chapter 31 the punishment level for which is a felony of the third degree or higher; or

(N) Section 21.02 (continuous sexual abuse of young child or children).

(c) Repealed by Acts 2003, 78th Leg., ch. 204, Sec. 4.10(5).

(d) This section does not create a cause of action.

(e) Notwithstanding anything to the contrary stated in the provisions of the Penal Code listed in Subsection (b)(2), that subsection applies only if the claimant proves the defendant acted or failed to act with specific intent to do harm. A defendant acts with specific intent to do harm with respect to the nature of the defendant’s conduct and the result of the person’s conduct when it is the person’s conscious effort or desire to engage in the conduct for the purpose of doing substantial harm to others.

(f) The jury may not be made aware through voir dire, introduction into evidence, instruction, or any other means that the conduct to which Subsection (b)(2) refers is defined by the Penal Code.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.09, eff. Sept. 2, 1987; Acts 1995, 74th Leg., ch. 136, Sec. 1, eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 204, Sec. 4.07, 4.10(5), eff. Sept. 1, 2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 593 (H.B. 8), Sec. 3.02, eff. September 1, 2007.

Sec. 33.015. CONTRIBUTION. (a) If a defendant who is jointly and severally liable under Section 33.013 pays a percentage of the damages for which the defendant is jointly and severally liable greater than his percentage of responsibility, that defendant has a right of contribution for the overpayment against each other liable defendant to the extent that the other liable defendant has not paid the percentage of the damages found by the trier of fact equal to that other defendant’s percentage of responsibility.

(b) As among themselves, each of the defendants who is jointly and severally liable under Section 33.013 is liable for the damages recoverable by the claimant under Section 33.012 in proportion to his respective percentage of responsibility. If a defendant who is jointly and severally liable pays a larger proportion of those damages than is required by his percentage of responsibility, that defendant has a right of contribution for the overpayment against each other defendant with whom he is jointly and severally liable under Section 33.013 to the extent that the other defendant has not paid the proportion of those damages required by that other defendant’s percentage of responsibility.

(c) If for any reason a liable defendant does not pay or contribute the portion of the damages required by his percentage of responsibility, the amount of the damages not paid or contributed by that defendant shall be paid or contributed by the remaining defendants who are jointly and severally liable for those damages. The additional amount to be paid or contributed by each of the defendants who is jointly and severally liable for those damages shall be in proportion to his respective percentage of responsibility.

(d) No defendant has a right of contribution against any settling person.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.11, eff. Sept. 2, 1987; Acts 1995, 74th Leg., ch. 136, Sec. 1, eff. Sept. 1, 1995.

Sec. 33.016. CLAIM AGAINST CONTRIBUTION DEFENDANT. (a) In this section, “contribution defendant” means any defendant, counterdefendant, or third-party defendant from whom any party seeks contribution with respect to any portion of damages for which that party may be liable, but from whom the claimant seeks no relief at the time of submission.

(b) Each liable defendant is entitled to contribution from each person who is not a settling person and who is liable to the claimant for a percentage of responsibility but from whom the claimant seeks no relief at the time of submission. A party may assert this contribution right against any such person as a contribution defendant in the claimant’s action.

(c) The trier of fact shall determine as a separate issue or finding of fact the percentage of responsibility with respect to each contribution defendant and these findings shall be solely for purposes of this section and Section 33.015 and not as a part of the percentages of responsibility determined under Section 33.003. Only the percentage of responsibility of each defendant and contribution defendant shall be included in this determination.

(d) As among liable defendants, including each defendant who is jointly and severally liable under Section 33.013, each contribution defendant’s percentage of responsibility is to be included for all purposes of Section 33.015. The amount to be contributed by each contribution defendant pursuant to Section 33.015 shall be in proportion to his respective percentage of responsibility relative to the sum of percentages of responsibility of all liable defendants and liable contribution defendants.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.11A, eff. Sept. 2, 1987; Acts 1995, 74th Leg., ch. 136, Sec. 1, eff. Sept. 1, 1995.

Sec. 33.017. PRESERVATION OF EXISTING RIGHTS OF INDEMNITY. Nothing in this chapter shall be construed to affect any rights of indemnity granted by any statute, by contract, or by common law. To the extent of any conflict between this chapter and any right to indemnification granted by statute, contract, or common law, those rights of indemnification shall prevail over the provisions of this chapter.

 

Martindale AVtexas[2]

Texas Discovery Disputes on Net Worth and Exemplary Damages Issues–Fort Worth, Texas Collections Attorneys

300 S.W.3d 35 (Tex.App.-Houston [14 Dist.] 2009)
In re Mark A. JACOBS, M.D., Debra C. Gunn, M.D.,
and Obstetrical and Gynecologist Associates, P.A.,
Relators.
No. 14-09-00123-CV.
Court of Appeals of Texas, Fourteenth District,
Houston.
October 20, 2009

Panel consists of Justices BROWN, BOYCE, and
SULLIVAN.
MAJORITY OPINION
JEFFREY V. BROWN, Justice.
In this original proceeding, the relators, Mark A.
Jacobs, M.D., Debra C. Gunn, M.D., and Obstetrical and
Gynecologist Associates, P.A., seek a writ of mandamus
ordering the Honorable Mike Wood, presiding judge of
Probate Court No. 2 of Harris County, to set aside his two
orders of January 23, 2009-one compelling the deposition
of Dr. Jacobs and one compelling net-worth discovery for
the past two years-and his order of January 30, 2009,
clarifying the two January 23 orders. We conditionally
grant the petition in part and deny it in part.
I
Real parties in interest, Andre McCoy, Individually
and as Permanent Guardian of Shannon Miles McCoy, an
Incapacitated Person (the ” McCoys” ), have sued the
relators and others [1] for negligence and gross
negligence in providing medical care and treatment to
Shannon while she was an obstetrical patient at Woman’s
Hospital of Texas from September 13, 2004 to September
14, 2004. On November 16, 2007, the McCoys served the
relators with requests for discovery of net-worth
information. When the relators objected to the requests
for production, the McCoys filed a motion to compel
discovery.
Page 39
On January 23, 2009, the trial court held a hearing
and signed an order directing the McCoys to amend their
pleadings to provide more specific allegations of gross
negligence against the relators following the completion
of the depositions of Dr. Jacobs and Dr. Gunn. Subject to
the filing of a sufficient pleading as to gross negligence,
the trial court further ordered the relators to produce ” the
actual financial statements they have provided to a lender
within the past two (2) years that identifies the assets and
liabilities of each Defendant.” Alternatively, if the
relators had not submitted any such financial statement to
a lender within the two years preceding the date of the
order, the court ordered each relator to:
(i) Produce an affidavit swearing that no such financial
statement has actually been submitted to a lender in the
past two (2) years; and
(ii) Produce an affidavit under oath in the format of what
would have been provided to a lender as to net worth.
The order directed that the relators produce such
net-worth information no later than thirty days after the
McCoys sufficiently pleaded gross negligence. In the
order, Judge Wood also prohibited the McCoys from
seeking to compel any additional responses to their
outstanding net-worth discovery requests, and announced
that any net-worth information provided to the McCoys
would be ” safeguarded by a protective order.” On
January 23, Judge Wood signed another order granting
the McCoys’ motion to compel the deposition of Dr.
Jacobs, and directed that the deposition may not exceed
three hours on the record.
On January 26, the relators filed a motion to clarify
the order regarding the discoverability of net worth. The
relators stated they did not understand when to produce
the net-worth information to comply with the order and
requested the trial court to so specify. Also, the relators
requested a written order on what net-worth matters, if
any, the McCoys would be allowed to cover during the
depositions of Dr. Jacobs and Dr. Gunn.
On January 30, the trial court signed an order
clarifying its prior orders regarding the discoverability of
net-worth information. The trial court directed the
relators to produce the information by February 6, 2009,
and ruled that the McCoys would be permitted to depose
Dr. Gunn and Dr. Jacobs about their net worth.
In their petition, the relators argue that the trial
court abused its discretion with respect to the orders of
January 23 and 30 by directing the relators to (1) produce
net-worth information for the past two years in the form
of actual financial statements they have provided to
lenders; (2) create a net-worth document in the format of
what would have been provided to a lender; and (3)
present Dr. Jacobs and Dr. Gunn for deposition regarding
their net worth without any temporal or subject-matter
limitations. The relators further assert they have no
adequate remedy by appeal because their rights to due
process and privacy are in jeopardy of being permanently
lost or compromised.
II
To be entitled to the extraordinary relief of a writ
of mandamus, the relator must show that the trial court
clearly abused its discretion and he has no adequate
remedy by appeal. In re Team Rocket, L.P., 256 S.W.3d
257, 259 (Tex.2008) (orig. proceeding). The party
resisting discovery bears the heavy burden of establishing
an abuse of discretion and an inadequate remedy by
appeal. In re CSX Corp., 124 S.W.3d 149, 151
(Tex.2003) (orig. proceeding) (per curiam). A trial court
abuses its discretion if it reaches a
Page 40
decision so arbitrary and unreasonable as to constitute a
clear and prejudicial error of law, or if it clearly fails to
correctly analyze or apply the law. In re Cerberus
Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex.2005)
(orig. proceeding) (per curiam); Walker v. Packer, 827
S.W.2d 833, 839 (Tex.1992) (orig. proceeding).
Whether a clear abuse of discretion can be
adequately remedied by appeal depends on a careful
analysis of costs and benefits of interlocutory review. In
re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464
(Tex.2008) (orig. proceeding). Because this balance
depends heavily on circumstances, it must be guided by
analysis of principles rather than simple rules that treat
cases as categories. Id. ” Mandamus review of significant
rulings in exceptional cases may be essential to preserve
important substantive and procedural rights from
impairment or loss, allow the appellate courts to give
needed and helpful direction to the law that would
otherwise prove elusive in appeals from final judgments,
and spare private parties and the public the time and
money utterly wasted enduring eventual reversal of
improperly conducted proceedings.” In re Prudential Ins.
Co. of Am., 148 S.W.3d 124, 136 (Tex.2004) (orig.
proceeding); see also In re Columbia Med. Ctr. of Las
Colinas, Subsidiary, L.P., 290 S.W.3d 204, 207
(Tex.2009) (orig. proceeding) (” Used selectively,
mandamus can ‘ correct clear errors in exceptional cases
and afford appropriate guidance to the law without the
disruption and burden of interlocutory appeal.’ ” )
(quoting In re Prudential, 148 S.W.3d at 138). Thus, in
determining whether appeal is an adequate remedy, we
consider whether the benefits of mandamus review
outweigh the detriments. In re BP Prods. N. Am., Inc.,
244 S.W.3d 840, 845 (Tex.2008) (orig. proceeding).
Appeal is not an adequate remedy when the appellate
court would not be able to cure the trial court’s discovery
error. In re Dana Corp., 138 S.W.3d 298, 301 (Tex.2004)
(per curiam) (orig. proceeding); In re Kuntz, 124 S.W.3d
179, 181 (Tex.2003) (orig. proceeding).
A
The relators assert the trial court abused its
discretion by ordering them to produce their net-worth
information to the McCoys. A defendant’s net worth is
relevant in a suit involving exemplary damages. Lunsford
v. Morris, 746 S.W.2d 471, 473 (Tex.1988) (orig.
proceeding), overruled on other grounds, Walker, 827
S.W.2d at 842; Miller v. O’Neill, 775 S.W.2d 56, 58
(Tex.App.-Houston [1st Dist.] 1989, orig. proceeding).
Therefore, in cases where punitive or exemplary damages
may be awarded, parties may discover and offer evidence
of a defendant’s net worth. Lunsford, 746 S.W.2d at 473.
Generally, in cases concerning the production of financial
records, the burden rests upon the party seeking to
prevent production. In re Brewer Leasing, Inc., 255
S.W.3d 708, 712 (Tex.App.-Houston [1st Dist.] 2008,
orig. proceeding [mand. denied] ); In re Patel, 218
S.W.3d 911, 916 (Tex.App.-Corpus Christi 2007, orig.
proceeding).
The relators argue the McCoys are not entitled to
discovery on net worth until they have established a
prima facie case of gross negligence. However, the Texas
Supreme Court has expressly rejected this contention. See
Lunsford, 746 S.W.2d at 473 (rejecting requirement of
prima facie showing because ” [o]ur rules of civil
procedure and evidence do not require similar practices
before net worth may be discovered” ).[2] Therefore,
under Texas law, a party seeking discovery of net-worth
Page 41
information need not satisfy any evidentiary prerequisite,
such as making a prima facie showing of entitlement to
punitive damages, before discovery of net worth is
permitted. In re House of Yahweh, 266 S.W.3d 668, 673
(Tex.App.-Eastland 2008, orig. proceeding); In re Garth,
214 S.W.3d 190, 192 (Tex.App.-Beaumont 2007, orig.
proceeding [mand. dism’d] ); In re W. Star Trucks US,
Inc., 112 S.W.3d 756, 763 (Tex.App.-Eastland 2003,
orig. proceeding); Al Parker Buick Co. v. Touchy, 788
S.W.2d 129, 131 (Tex.App.-Houston [1st Dist.] 1990,
orig. proceeding).
The relators acknowledge the Texas Supreme
Court’s express holding in Lunsford, but argue that we
should follow other jurisdictions that require a plaintiff to
demonstrate a factual basis for punitive damages before
being allowed to do net-worth discovery.[3] Even though
Lunsford is over twenty years old, the Texas Supreme
Court has not revisited this issue. [4] As an intermediate
court of appeals, we are bound by the supreme court’s
ruling in Lunsford and, therefore, we decline the relators’
invitation. See Dallas Area Rapid Transit v.
Amalgamated Transit Union Local No. 1338, 273 S.W.3d
659, 666 (Tex.2008), cert. denied, __ U.S. __, 129 S.Ct.
2767, 174 L.Ed.2d 284 (2009) (” It is fundamental to the
very structure of our appellate system that this Court’s
decisions be binding on the lower courts.” );
Page 42
Lubbock County, Tex. v. Trammel’s Lubbock Bail Bonds,
80 S.W.3d 580, 585 (Tex.2002) (” It is not the function of
a court of appeals to abrogate or modify established
precedent…. That function lies solely with this Court.” ).
In accordance with Lunsford, the McCoys are not
required to make a prima facie case, or any other
evidentiary showing, of entitlement to punitive damages
before seeking discovery of the relators’ net-worth
information.
B
The relators also argue evidence of their net worth
is not relevant because the McCoys have not alleged
sufficient facts to support their claim of gross negligence
under section 41.001(11) of the Texas Civil Practices and
Remedies Code. Section 41.001(11) defines ” gross
negligence” :
(11) ” Gross negligence” means an act or omission:
(A) which when viewed objectively from the standpoint
of the actor at the time of its occurrence involves an
extreme degree of risk, considering the probability and
magnitude of the potential harm to others; and
(B) of which the actor has actual, subjective awareness of
the risk involved, but nevertheless proceeds with
conscious indifference to the rights, safety, or welfare of
others.
Id.
The McCoys allege Dr. Jacobs and Dr. Gunn
knowingly failed to: (1) adequately and appropriately
treat Shannon’s disseminated intravascular coagulopathy
(” DIC” ) [5]; (2) appreciate the severity of Shannon’s
coagulopathy in light of abnormal lab values indicating
that she was actively bleeding and suffering from DIC;
(3) aggressively treat Shannon’s DIC with adequate blood
products and blood-volume replacement; and (4)
repeatedly order appropriate coagulation profiles and to
serially re-check Shannon’s blood work or to monitor and
evaluate her clotting factors [6] to determine how well, or
how poorly, she was responding to treatment.
The McCoys further allege Dr. Jacobs knowingly
failed to: (1) verify that his orders for blood-volume
replacement were being carried out and Shannon was
being administered blood products as ordered; and (2)
appropriately and aggressively manage Shannon’s DIC
from the outset of her admission by ordering and
administering additional units of fresh frozen plasma to
increase Shannon’s blood volume and to correct her
consumptive coagulopathy before the delivery of her
baby.
The McCoys also allege Dr. Gunn knowingly failed
to: (1) appreciate that Shannon’s DIC was depleting and
consuming her clotting factors and that if these clotting
factors were not replaced through aggressive
blood-volume replacement and clotting-factor
replacement,
Page 43
Shannon’s blood would not be able to coagulate
effectively at the time she delivered her baby; (2)
recognize and appreciate that Dr. Jacobs had undertreated
Shannon; (3) recognize, appreciate, and appropriately
respond to Shannon’s tachycardia on September 14, 2004,
by more aggressively treating her DIC; (4) order Laisix (a
diuretic medication that increases urine output) for
Shannon, even though she knew that Shannon was
suffering from DIC and actively bleeding, and did not
need to be administered a diuretic medication; (5)
recognize, appreciate, and properly respond to the fact
that Shannon’s condition was deteriorating (as evidenced
by her tachycardia (rapid heartbeat) and urine output),
and that she was developing hypovolemic shock (shock
caused by reduction in blood volume); and (6) recognize
that she was not qualified to treat and manage Shannon’s
DIC and to request the help of a more specialized
physician to treat and manage Shannon’s DIC.
Finally, the McCoys allege the conduct of Dr.
Jacobs and Dr. Gunn, when viewed objectively from their
standpoint at the time of the occurrence, involved an
extreme degree of risk, considering the probability and
magnitude of the potential harm to others. The McCoys
further allege Dr. Jacobs and Dr. Gunn had actual,
subjective awareness of the risk involved, but
nevertheless proceeded with conscious indifference to
Shannon’s rights, safety, or welfare.
In response to the McCoys’ gross-negligence
allegations, the relators argue that merely adding the
word ” knowingly” to existing allegations of negligence
is not enough. Texas follows the ” fair notice” standard
for pleadings, which looks to whether the opposing party
can ascertain from the pleadings the nature and basic
issues of the controversy and the type of evidence that
might be relevant to the controversy. Low v. Henry, 221
S.W.3d 609, 612 (Tex.2007); Horizon/CMS Healthcare
Corp. of Am. v. Auld, 34 S.W.3d 887, 896 (Tex.2000). ” ‘
A petition is sufficient if it gives fair and adequate notice
of the facts upon which the pleader bases his claim. The
purpose of this rule is to give the opposing party
information sufficient to enable him to prepare a defense.’
” Horizon/CMS Healthcare, 34 S.W.3d at 897 (quoting
Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982)).
Exemplary damages are special damages that must be
supported by express allegations of willfulness, malice,
or gross negligence that go beyond the allegations
necessary to recover compensatory damages. Al Parker
Buick Co., 788 S.W.2d at 130. Texas law requires a
plaintiff seeking production of net worth information to ”
‘ allege facts showing that relator is liable for punitive
damages.’ ” Delgado v. Kitzman, 793 S.W.2d 332, 333
(Tex.App.-Houston [1st Dist.] 1990, orig. proceeding)
(quoting Al Parker Buick Co., 788 S.W.2d at 131).
Under Texas’ basic pleading requirements, the
McCoys’ live pleadings sufficiently allege specific facts
supporting gross negligence and invoke the objective and
subjective standards as set forth in section 41.001(11). [7]
See Tex. Civ. Prac. & Rem.Code Ann. Therefore, we
conclude the McCoys have pleaded facts sufficient for
purposes of showing they are entitled to discovery of
net-worth information from
Page 44
the relators. See In re Garth, 214 S.W.3d at 192 (holding
plaintiff’s pleadings were sufficient to notify defendants
that she sought to hold them liable for punitive damages
through conspiracy theory); In re W. Star Trucks US,
Inc., 112 S.W.3d at 763-64 (holding allegations in
petition that defendant had engaged in fraudulent and
malicious conduct were sufficient to permit discovery of
net worth); Delgado, 793 S.W.2d at 333 (holding
plaintiff’s pleading alleging defendant was ” consciously
indifferent” to safety of others was sufficient to entitle
plaintiff to discovery of net worth information).[8]
C
The relators also contend the trial court’s order
directing them to provide net-worth information for the
past two years is overly broad and unduly burdensome
because it goes beyond what is necessary to demonstrate
their respective current net worths. Discovery is limited
to matters relevant to the case. Texaco, Inc. v. Sanderson,
898 S.W.2d 813, 814 (Tex.1995) (orig. proceeding) (per
curiam); see also Tex.R. Civ. P. 192 cmt. 1 (” While the
scope of discovery is quite broad, it is nevertheless
confined by the subject matter of the case and reasonable
expectations of obtaining information that will aid
resolution of the dispute.” ). A party’s requests must show
a reasonable expectation of obtaining information that
will aid in the resolution of the dispute. In re CSX Corp.,
124 S.W.3d at 152. Therefore, discovery requests must be
reasonably tailored to include only matters relevant to the
case. In re Am. Optical Corp., 988 S.W.2d 711, 713
(Tex.1998) (orig. proceeding) (per curiam). The Texas
Supreme Court has repeatedly admonished that discovery
may not be used as a fishing expedition. K Mart Corp. v.
Sanderson, 937 S.W.2d 429, 431 (Tex.1996) (orig.
proceeding) (per curiam); Dillard Dep’t Stores, Inc. v.
Hall, 909 S.W.2d 491, 492 (Tex.1995) (orig. proceeding)
(per curiam); Texaco, Inc., 898 S.W.2d at 815.
The scope of discovery is a matter of trial-court
discretion. In re CSX Corp., 124 S.W.3d at 152.
However, a trial court abuses its discretion when it
compels overly broad discovery. In re Graco Children’s
Prods., Inc., 210 S.W.3d 598, 600 (Tex.2006) (orig.
proceeding) (per curiam); Dillard Dep’t Stores, Inc., 909
S.W.2d at 492. ” A central question in determining
overbreadth is whether the request could have been more
narrowly tailored to avoid including tenuous information
and still obtain the necessary information.” In re CSX
Corp., 124 S.W.3d at 153. Overbroad requests encompass
time periods or activities beyond those at issue in the
case-in other words, matters of questionable relevance. In
re Alford Chevrolet-Geo, 997 S.W.2d 173, 180 n. 1
(Tex.1999) (orig. proceeding).
The McCoys sought five years’ worth of financial
information from the relators. The trial court narrowed
the scope of discovery to two years’ worth. But we do not
believe the trial court sufficiently narrowed the scope of
production because only the relators’ current [9] net
Page 45
worth is relevant. See In re House of Yahweh, 266
S.W.3d at 673 (holding trial court erred in failing to limit
discovery to relators’ current balance sheets because
earlier balance sheets would not be relevant to relators’
current net worth).[10] Therefore, we conclude the trial
court abused its discretion by ordering the relators to
produce net-worth information beyond the relators’
current net worth. See In re Allstate County Mut. Ins. Co.,
227 S.W.3d 667, 669 (Tex.2007) (orig. proceeding) (per
curiam) (holding trial court’s order was abuse of
discretion because it did not limit discovery requests
which were overbroad as to time and scope). Moreover,
the relators do not have an adequate remedy by appeal
from the production of their net worth from previous
years. See In re Weekley Homes, L.P., 295 S.W.3d 309,
322-23 (Tex.2009) (orig. proceeding) (” Intrusive
discovery measures … require at a minimum, that the
benefits of the discovery measure outweigh the burden
imposed upon the discovered party.” ); In re CSX Corp.,
124 S.W.3d at 153 (holding relator lacked adequate
remedy by appeal where discovery order compelled
production of ” patently irrelevant” documents); Tilton v.
Marshall, 925 S.W.2d 672, 683 (Tex.1996) (orig.
proceeding) (op. on reh’g) (” ‘ [w]here … discovery order
imposes a burden on the producing party far out of
proportion to any benefit that may obtain to the
requesting party,’ ” mandamus relief may be justified)
(quoting Walker, 827 S.W.2d at 843).
D
The relators also complain about the trial court’s
order requiring Dr. Jacobs and Dr. Gunn to answer
questions about their net worth at their depositions.
Allowing such inquiries without any limitations as to
time or subject matter, the relators argue, is overly broad
and burdensome. See In re Alford Chevrolet-Geo, 997
S.W.2d at 180 n. 1 (explaining overbroad requests
encompass time periods or activities beyond those at
issue in case, i.e., matters of questionable relevance).
Further, the relators contend that answering deposition
questions about information they already have provided
in written discovery responses would be unnecessarily
cumulative. We address this issue by observing that we
are concerned not only with determining the appropriate
scope of discovery of the relators’ net worth under
Lunsford, but also with employing the most efficient and
least intrusive methods by which to permit the McCoys to
discover that information. See Tex.R. Civ. P. 192 cmt. 1
(explaining scope of discovery is confined by subject
matter of case and reasonable expectations of obtaining
information that will aid resolution of dispute);
Page 46
In re Weekley Homes, L.P., 295 S.W.3d at 321 (” [T]rial
courts should be mindful of protecting sensitive
information and utilize the least intrusive means
necessary to facilitate discovery.” ).
Allowing litigants to delve without limitation into
personal finances not only raises serious privacy
concerns, but also provides an opportunity for ” needless
abuse and harassment.” Wal-Mart Stores, Inc. v.
Alexander, 868 S.W.2d 322, 331-32 (Tex.1993)
(Gonzalez, J., concurring). In light of these concerns, we
believe it is appropriate to limit the scope of
oral-deposition inquiry into net worth. See Axelson, Inc.
v. McIlhany, 798 S.W.2d 550, 553 (Tex.1990) (orig.
proceeding) (explaining scope of discovery is limited by
legitimate interests of a party to avoid overly broad
requests, harassment, or disclosure of privileged
information). Accordingly, with respect to net-worth
discovery during the oral depositions of Dr. Jacobs and
Dr. Gunn, the McCoys are limited to asking each
physician to state (1) his or her current net worth, i.e., the
amount of current total assets less current total liabilities
determined in accordance with generally accepted
accounting principles (” GAAP” ),[11] and (2) the facts
and methods used to calculate what each physician
alleges is his or her current net worth. Any questioning
beyond these two narrow inquiries shall be allowed only
upon leave of the trial court after a showing that the
McCoys have reason to believe that the information
provided was incomplete or inaccurate. See In re
Prudential, 148 S.W.3d at 136 (explaining mandamus is
appropriate in exceptional cases ” to give needed and
helpful direction to the law that would otherwise prove
elusive in appeals from final judgments” ). And to the
extent more specific limitations are appropriate, such as
on the amount of on-the-record deposition time that may
be devoted to questioning about net worth, we leave that
to the sound discretion of the trial court.
E
Finally, the relators assert the trial court abused its
discretion by ordering them to create and produce
affidavits in a format of what would have been provided
to a lender as to their respective net worth. The trial court
ordered the relators to produce ” the actual financial
statements they have provided to a lender within the past
two-years.” Alternatively, the trial court directed the
relators, if they had not submitted any such financial
statements to a lender within the preceding two years, to
produce (1) an affidavit swearing that no such financial
statement has been submitted, and (2) an affidavit in the
form of what would have been provided to a lender as to
net worth. It is well-settled that a party cannot be forced
to create documents that do not exist for the sole
Page 47
purpose of complying with a request for production.[12]
Therefore, the relators are not required to create affidavits
in a format of what would have been provided to a lender
to comply with the McCoys’ request for production.[13]
Instead, the relators are required to produce in response to
the McCoys’ requests for production only documents that
already exist. In keeping with our above-holding, any
such information is limited to the relators’ respective
current net worth, as well as whatever other limitations
the trial court has set forth or may yet impose.
III
We deny the relators’ petition with regard to their
assertions that the McCoys are precluded from seeking
discovery of information of any net worth because Texas
law requires a claimant first to make a prima facie
showing of entitlement to punitive damages and the
McCoys have not pleaded sufficient allegations of
conduct entitling them to punitive damages.
We conditionally grant the relators’ petition with
regard to the trial court’s order of January 23, 2009,
requiring the relators to produce net-worth information
for the past two years. The relators are required to
produce only current net-worth information. Further, the
relators are not required to create affidavits in a format of
what would have been provided to a lender, but are
required only to produce documents in response to the
McCoys’ request for production that already exist. The
trial court is directed to modify that portion of its order
accordingly.
We further conditionally grant the relators’ petition
with regard to the trial court’s order of January 30, 2009,
permitting the questioning of Dr. Jacobs and Dr. Gunn
about their respective current net worth. Specifically, the
McCoys are limited to asking each physician to (1) state
his or her current net worth, i.e., the amount of current
total assets less current total liabilities, and (2) the facts
and methods used to calculate what each physician
alleges is his or her current net worth. Moreover, any
questioning beyond these two narrow inquiries shall be
allowed only upon leave of the trial court after a showing
that the McCoys have reason to believe that the
information provided was incomplete or inaccurate. The
trial court is directed to modify that portion of its order
accordingly, and is free to otherwise impose whatever
other limitations it determines, in its discretion, to be
appropriate.
We lift our stays issued on February 4, 2009, and
March 6, 2009. The writ will issue only if the trial court
fails to act in accordance with this opinion.
SULLIVAN, J., concurring.
KENT C. SULLIVAN, Justice, concurring.
The Court today reaches a result consistent with the
current state of Texas law. I write separately only to note
that the current Texas rule on net-worth discovery is now
decades-old and, in light of the evolution
Page 48
of Texas law, needs to be revisited. The instant case
illustrates how it contributes to unnecessary ” satellite
litigation” unrelated to the merits of the case and often
produces expense and burden far exceeding any potential
benefit.
A brief review of the history of this dispute is
illustrative. It is noteworthy that the medical incident
made the basis of this lawsuit occurred in September
2004. Five years later this legal dispute remains
unresolved-even at the trial-court level.
The specific controversy over net-worth discovery
is fast approaching its second anniversary and has
continued largely unabated. It began with an exhaustive
request for financial records covering a multi-year period.
Those discovery requests inevitably produced-over many
months-a flood of objections, hours of court hearings,
multiple court orders, and the current mandamus
proceeding with multiple appellate briefs from each side.
The cost to the parties has no doubt been significant. The
level of chaos in this case-a tort case with themes
common to many such disputes-has given me pause, with
a belief that some assessment is in order as to the efficacy
of this process as well as the relative value of the
discovery in question.
A. The Role of Net-Worth Discovery in Resolving
Material Case Issues
Under the Rules, a trial judge should limit discovery
for which the burden or expense outweighs the likely
benefit. Tex.R. Civ. P. 192.4(b). In weighing these
factors, courts are to consider, among other things, the
importance of the proposed discovery in resolving the
material issues of the lawsuit. See id.
As a general rule, evidence of a party’s wealth is
irrelevant and prejudicial. See Carter v. Exxon Corp., 842
S.W.2d 393, 399 (Tex.App.-Eastland 1992, writ denied).
Consequently, it is almost always inadmissible at trial.
See Cooke v. Dykstra, 800 S.W.2d 556, 562
(Tex.App.-Houston [14th Dist.] 1990, no writ); Carter,
842 S.W.2d at 399.
In Lunsford v. Morris, however, the Texas Supreme
Court carved out a narrow exception to the general rule of
inadmissibility, allowing parties to discover and
introduce evidence of a defendant’s net worth in cases in
which punitive or exemplary damages could be awarded.
746 S.W.2d 471, 473 (Tex.1988) (orig. proceeding),
disapproved of on other grounds by Walker v. Packer,
827 S.W.2d 833, 842 (Tex.1992) (orig. proceeding).
However, Lunsford properly should be considered in its
historical context.
Specifically, in 1981, the Texas Supreme Court
decided to re-visit the standard of review used in
reviewing jury awards of punitive damages. See Burk
Royalty Co. v. Walls, 616 S.W.2d 911, 920 (Tex.1981).
Under the prior standard, a defendant could successfully
challenge a punitive-damages award on appeal simply by
pointing to any evidence suggesting he exercised some
care. See id. at 921. However, the Court chose to depart
from that standard because it was seen as creating a
virtually impossible hurdle to the recovery of punitive
damages ” since anything may amount to some care.” Id.
In its place, the Court substituted a no-evidence standard
of review that effectively ” gave ‘ the jury greater
discretion to award punitive damages.’ ” [1]
In addition, the Burk Court authorized plaintiffs to
prove ” gross negligence,” the
Page 49
standard for imposing punitive damages, merely by
constructive notice of the defendant’s subjective state of
mind. See Burk, 616 S.W.2d at 922. Four years later, the
Court re-affirmed that holding and also expanded the
definition of ” gross negligence” to give plaintiffs
additional methods to prove a defendant’s culpability for
exemplary damages:
[T]he test for gross negligence is both an objective and a
subjective test. A plaintiff may prove a defendant’s gross
negligence by proving that the defendant had actual
subjective knowledge that his conduct created an extreme
degree of risk. In addition, a plaintiff may objectively
prove a defendant’s gross negligence by proving that
under the surrounding circumstances a reasonable person
would have realized that his conduct created an extreme
degree of risk to the safety of others.
Williams v. Steves Indus., Inc., 699 S.W.2d 570, 573
(Tex.1985) (emphasis added), superseded by statute as
recognized by Transp. Ins. Co. v. Moriel, 879 S.W.2d 10,
20 n. 11 (Tex.1994).
In 1987, the Texas Legislature began to scale back
the availability of punitive damages by enacting Chapter
41 of the Texas Civil Practice and Remedies Code.[2]
However, while the original version of Chapter 41
introduced basic limitations to the recovery of punitive
damages,[3] the protections it extended to defendants
pale in comparison with those found in the version
currently in effect.[4] Lunsford was decided the
following year but, apart from a brief mention in one of
the dissenting opinions, ignores any discussion of the
1987 reforms or their effect on the Court’s expansive
exemplary-damage decisions from earlier that decade.
See Lunsford, 746 S.W.2d at 476 (Gonzalez, J.,
dissenting).
In 1995, the Legislature passed more sweeping tort
reform to the substantive and procedural law governing
punitive damages. See Act of April 11, 1995, 74th Leg.,
R.S., ch. 19, § 1, 1995 Tex. Gen. Laws 108, 108-13
(amended 2003) (current version at Tex. Civ. Prac. &
Rem.Code Ann. §§ 41.001-.013 (Vernon 2008 & Supp.
2009)). Chapter 41 was significantly rewritten to provide
defendants dramatic protection from punitive-damage
awards, including:
• Juries could no longer award exemplary damages
intended solely to serve ” as an example to others,” but
were instead limited to assessing damages with the
purpose of punishing the defendant.
• The Legislature dramatically expanded Chapter
41’s coverage to apply to all but a very few types of tort
actions.
• A plaintiff’s burden of proof for punitive damages
was elevated to require proof of all elements by clear and
convincing evidence.
Page 50
• With few limitations, a defendant could no longer
be exposed to punitive damages because of another
person’s criminal act.
• The Legislature lowered the existing cap on
punitive damages.
• Upon a defendant’s motion, the trial court had to
bifurcate the jury’s determination of the amount of
punitive damages, and evidence of a defendant’s net
worth could not be admitted during the liability phase of
the trial.
Id. These substantive and procedural amendments
changed the legal landscape on two levels. First, they
further limited the amount of punitive damages that could
be assessed. See id. § 1 secs. 41.007, 41.008. Second, and
more significantly, these revisions dramatically lessened
the chances of any punitive-damage recovery by a
claimant. See id. § 1 secs. 41.001(5), 41.002, 41.003(b),
41.005.
In 2003, the Legislature further eroded a plaintiff’s
ability to recover punitive damages as a part of
comprehensive tort-reform legislation.[5] Now, unlike
the general rule permitting a civil verdict upon the vote of
only ten jurors, an award of punitive damages requires a
unanimous verdict as to liability for, and the amount of,
such damages. See Tex. Civ. Prac. & Rem.Code Ann. §
41.003(d) (Vernon 2008 & Supp. 2009); Tex.R. Civ. P.
292; Deatley v. Rodriguez, 246 S.W.3d 848, 850
(Tex.App.-Dallas 2008, no pet.).
In their brief, the McCoys acknowledge the
dramatic shift in the law on punitive damages since
Lunsford, as the Legislature has repeatedly acted ” to
tightly restrict the ability of litigants to seek and recover
exemplary damages.” [6] Thus, in the current legal
climate, far fewer cases are likely to present fact issues
for trial as to punitive-damage liability than when
Lunsford was decided more than two decades ago.[7]
Accordingly, because net-worth discovery may serve
little practical purpose in many cases, [8] trial courts
performing
Page 51
a benefit-to-burden analysis should consider appropriate
management of the scope of such discovery
corresponding to its utility in resolving these important
issues. See Tex.R. Civ. P. 192.4(b).
B. Burden and Expense of Net-Worth Discovery
The benefits of net-worth discovery are likely
limited in most cases, but the direct and indirect costs
may not be. Of course, a case against a publicly traded
corporation may present little problem in this respect, as
its net worth should be discernible simply from the
contents of a widely available annual report. Under that
scenario, the burden and expense of the proposed
discovery would be minimal. See id.
A private individual, however, presents a far
different profile with, at minimum, potentially serious
issues as to privacy rights and availability of responsive
information. Net-worth discovery as to an individual will
almost inevitably require-and deserve-much more
management and oversight by the trial court.[9] See In re
Weekley Homes, L.P., 295 S.W.3d 309, 316 (Tex.2009)
(orig. proceeding) (” To the extent possible, courts should
be mindful of protecting sensitive information and should
choose the least intrusive means of retrieval.” ).
In this case, the McCoys sought audited financial
statements that, while invasive, may at least represent one
of the most accurate and efficient ways for indicating an
individual’s net worth, if available.[10] However, they
also sought countless other categories of documents that
have been repeatedly held undiscoverable, such as
income-tax returns,[11] or which possess only the most
indirect and tenuous connection to net worth. Among this
latter category of documents are the McCoys’ requests for
(1) HUD statements reflecting the sale or purchase of real
estate; (2) ” any and all contracts that you are a party to
with any health insurance company, HMO, including
Medicare and/or Medicaid, managed care entity, or
hospital” ; (3) any documents reflecting accounts
receivable, from any time period, for the provision of
medical care; (4) accounts receivable due to the
defendant’s ” participation in any clinical drug trials,
medical device trials, or other medical product trials” for
the purpose of obtaining FDA approval; and (5) all
medical bills issued for an entire calendar year,
presumably as to all of the physicians’ patients, ”
touching, concerning, or dealing with” the provision of
medical care.
This sort of invasive discovery generally raises very
serious privacy concerns, but that is not its only cost. It
also imposes additional burden and expense on the parties
and their attorneys, as well as occupying the limited
resources of the trial court and, now, this appellate court.
See Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322,
331-32 (Tex.1993) (Gonzalez, J., concurring)
(commenting on the privacy concerns and potential for
abuse inherent in the ” unlimited discovery … of
sensitive, private, and confidential financial information”
).
Page 52
However, this sort of discovery should not be
unexpected given the Texas Supreme Court’s lengthy
silence as to both the precise definition of ” net worth” in
this context and the proper boundaries for the discovery
and ultimate presentation of information as to a
defendant’s net worth:
This Court in Lunsford failed to define net worth and
failed to suggest a procedure for placing such evidence
before the jury. I predicted then that in the absence of
guidance from this Court, ” confusion will prevail as
practitioners and judges attempt to ascertain the
components of ‘ net worth.’ ” Lunsford, 746 S.W.2d at
475.
Conflicting appellate court decisions on the meaning of
the term ” net worth” are evidence of the confusion
surrounding this fundamental issue. This confusion
should be resolved by this Court.
Wal-Mart, 868 S.W.2d at 330 (Gonzalez, J., concurring)
(citations omitted); see also Lunsford, 746 S.W.2d at 476
(Gonzalez, J., dissenting) (calling for clear definition of
term ” net worth” and clarity on types of documents
relevant to calculate it).
Here, the majority attempts to fairly bridge some of
this gap by offering a solid definition of ” net worth” as
assets minus liabilities. See Black’s Law Dictionary 1041
(6th ed. 1990); Wal-Mart, 868 S.W.2d at 330-31
(Gonzalez, J., concurring). Yet, even this pronouncement
may still lead to disagreements about the documents that
are relevant and discoverable to calculate this figure, in
light of the relative lack of guidance on this issue.
Trial courts have the necessary management tools to
control the sequence, timing, and scope of discovery to
minimize burden, maximize efficiency, and protect
privacy rights.[12] See Tex.R. Civ. P. 166, 192. Still, we
must acknowledge that there are literally hundreds of
Texas trial-court judges-spread over 254 counties-who
may preside over cases with claims for exemplary
damages and, of necessity, disputes involving net-worth
discovery. They each have different backgrounds,
different approaches, and different dockets. Those
dynamics are likely to produce a highly unpredictable
and idiosyncratic approach to the management of these
issues across the state-and history shows us that these are
issues that regularly recur. I believe parties to litigation in
Texas are entitled to greater clarity and predictability
from our courts. Accordingly, I would urge that Lunsford
be revisited and updated.
———
Notes:
[1] The other defendants are Woman’s Hospital of Texas,
Inc., CHCA Woman’s Hospital, L.P. d/b/a Woman’s
Hospital of Texas, Houston Woman’s Hospital Partner,
L.L.C., and James A. Collins, M.D.
[2] We note other jurisdictions require a prima facie
showing of entitlement to recover punitive damages prior
to conducting discovery on a defendant’s financial status.
See, e.g., Iowa Code Ann. § 668A.1 (1998); Larriva v.
Montiel, 143 Ariz. 23, 691 P.2d 735, 738 (1984); Curtis
v. Partain, 272 Ark. 400, 614 S.W.2d 671, 674 (1981),
overruled on other grounds, Lupo v. Lineberger, 313
Ark. 315, 855 S.W.2d 293 (1993); Herman v. Sunshine
Chem. Specialties, Inc., 133 N.J. 329, 627 A.2d 1081,
1089 (1993); Mark v. Congregation Mishkon Tefiloh, 745
A.2d 777, 780 (R.I.2000); Cramer v. Powder River Coal,
L.L.C., 204 P.3d 974, 980 (Wyo.2009). However, most
federal courts do not require a plaintiff to make a prima
facie showing of entitlement to recover punitive damages
before seeking pretrial discovery of the defendant’s
financial information. See, e.g., United States v. Matusoff
Rental Co., 204 F.R.D. 396, 399 (S.D.Ohio 2001) (stating
overwhelming majority of federal courts have concluded
plaintiffs seeking punitive damages are entitled to
discover information on defendant’s financial condition
without making prima facie showing of entitlement to
recovery of such damages); CEH, Inc. v. FV ” Seafarer” ,
153 F.R.D. 491, 498 (D.R.I.1994) (same); Mid Continent
Cabinetry, Inc. v. George Koch Sons, Inc., 130 F.R.D.
149, 151 (D.Kan.1990) (same); Doe v. Young, 2009 WL
440478, at *2 (E.D.Mo. Feb. 18, 2009) (same);
Westbrook v. Charlie Sciara & Son Produce Co., 2008
WL 839745, *2 (W.D.Tenn. Mar. 27, 2008) (same); S.
Cal. Hous. Rights Ctr. v. Krug, 2006 WL 4122148, at *4
(C.D.Cal. Sept. 5, 2006) (same).
[3] Other jurisdictions require the plaintiff to establish a
factual or evidentiary basis to be entitled to discovery on
a defendant’s net worth. See, e.g., Bryan v. Thos. Best &
Sons, Inc., 453 A.2d 107, 108 (Del.Super.Ct.1982);
Globe Newspaper Co. v. King, 658 So.2d 518, 519
(Fla.1995) (citing Fla. Stat. § 768.72); Smith v. Morris,
Manning & Martin, L.L.P., 293 Ga.App. 153, 666 S.E.2d
683, 697 (2008) (quoting Holman v. Burgess, 199
Ga.App. 61, 404 S.E.2d 144, 147 (1991)); Breault v.
Friedli, 610 S.W.2d 134, 139-40 (Tenn.Ct.App.1980). At
least two states go so far as to require the jury to return a
verdict awarding punitive damages prior to the plaintiff’s
conducting discovery on a defendant’s financial status.
See, e.g., Ex parte Hsu, 707 So.2d 223, 225-26
(Ala.1997) (citing Ala.Code § 6-11-23(b)); Prior v.
Brown Transp. Corp., 103 A.D.2d 1042, 478 N.Y.S.2d
435, 436 (N.Y.App.Div.1984) (quoting Rupert v. Sellers,
48 A.D.2d 265, 368 N.Y.S.2d 904, 912
(N.Y.App.Div.1975)).
[4] After Lunsford, the supreme court established a
bifurcated procedure for conducting trials involving
claims for punitive damages because of the ” very real
potential” that evidence of a defendant’s wealth will
prejudice the jury’s determination of other disputed issues
in tort cases. Transp. Ins. Co. v. Moriel, 879 S.W.2d 10,
30 (Tex.1994); see also Tex. Civ. Prac. & Rem.Code
Ann. § 41.009 (Vernon 2008) (providing for bifurcated
trial on claim for punitive damages).
[5] DIC ” is a rare, life-threatening condition that
prevents a person’s blood from clotting normally. It may
cause excessive clotting (thrombosis) or bleeding
(hemorrhage) throughout the body and lead to shock,
organ failure, and death.” WebMD, ” Disseminated
Intravascular Coagulation (DIC),” http:// www. webmd.
com/ a- to- z- guides/ disseminated- intravascularcoagulation-
dictopic- overview (last visited July 7,
2009). To treat DIC, ” [t]ransfusions of blood cells and
other blood products may be necessary to replace blood
that has been lost through bleeding and to replace clotting
factors used up by the body.” Id.
[6] ” Clotting factor” refers to ” any of several plasma
components (as fibrinogen, prothrombin, and
thromboplastin) that are involved in the clotting of
blood.” Merriam-Webster OnLine, ” clotting factor,”
http:// merriam-webster. com/medical/ clotting factors
(last visited July 8, 2009).
[7] Some states do not permit a plaintiff to claim punitive
damages in an original pleading, but allow for the
amendment of the plaintiff’s pleadings to claim punitive
damages, with the trial court’s permission, after satisfying
a requisite evidentiary showing. See, e.g., Idaho Code
Ann. § 6-160.4(2) (2008); Minn.Stat. Ann. § 549.191
(2000); Or.Rev.Stat. Ann. § 31.725(2) (2007).
[8] The relators argue, for the first time in their reply
brief, that we should consider, not only the pleadings, but
also the requirement that a plaintiff must first present
expert opinion of the applicable standard of care, the
alleged breach of that standard, and the causal link to
proceed on a health care liability claim when determining
whether net worth information is relevant. We do not
consider this contention because it was not raised in the
trial court or in the relators’ petition for writ of
mandamus. See In re TCW Global Project Fund, II, Ltd.,
274 S.W.3d 166, 171 (Tex.App.-Houston [14th Dist.]
2008, orig. proceeding).
[9] By ” current,” we mean as of the time the discovery is
responded to, though net-worth information should be
updated through supplementation-as should the
information in any discovery response-if it changes
materially between the service of the discovery response
and the time of trial. See Tex.R. Civ. P. 193.5(a).
[10] Other courts have similarly held only current
financial information is relevant to a punitive damages
claim. See, e.g., Hightower v. Heritage Acad. of Tulsa,
Inc., 2008 WL 2937227, at *1 (N.D.Okla. July 29, 2008)
(limiting discovery of financial information to defendant’s
balance sheet for 2008 and net worth for 2008); McCloud
v. Board of County Comm’rs, 2008 WL 1743444, at *4
(D.Kan. Apr. 11, 2008) (limiting production of
defendant’s financial information to most recent annual
reports and current financial statements); Platcher v.
Health Prof’ls, Ltd., 2007 WL 2772855, at *3 (C.D.Ill.
Sept. 18, 2007) (” Only Defendants’ current assets and
liabilities are relevant to the punitive damages claim
against them, …” ); Fieldturf Int’l, Inc. v. Triexe Mgmt.
Group, Inc., 2004 WL 866494, at *3 (N.D.Ill. Apr. 16,
2004) (” Plaintiffs’ request for non-current financial
information is irrelevant to punitive damages
determination.” ).
[11] Although section 41.011 provides that the fact finder
shall consider evidence, if any, of the defendant’s ” net
worth,” the statute does not define that term. Tex. Civ.
Prac. & Rem.Code Ann. 41.011(a)(6); see also Lunsford,
746 S.W.2d at 475 (Gonzalez, J., dissenting) (criticizing
court’s failure to define ” net worth” ). The parties have
not cited, and we have not found, any cases defining the
term ” net worth” in connection with the recovery of
punitive damages. However, ” net worth,” as used to
ascertain the amount of security required to suspend a
judgment pending appeal, has been defined as the
difference between total assets and liabilities determined
in accordance with GAAP. See Ramco Oil & Gas, Ltd. v.
Anglo Dutch (Tenge) L.L.C., 171 S.W.3d 905, 914
(Tex.App.-Houston [14th Dist.] 2005, no pet.) (defining ”
net worth” as difference between total assets and
liabilities determined in accordance with GAAP after
thorough discussion of numerous authorities); see also
Black’s Law Dictionary 1041 (6th ed. 1990) (defining net
worth as ” the amount by which assets exceed liabilities”
).
[12] See In re Guzman, 19 S.W.3d 522, 525
(Tex.App.-Corpus Christi 2000, orig. proceeding); Smith
v. O’Neal, 850 S.W.2d 797, 799 (Tex.App.-Houston [14th
Dist.] 1993, no writ); see also In re Colonial Pipeline
Co., 968 S.W.2d 938, 942 (Tex.1998) (quoting McKinney
v. Nat’l Union Fire Ins. Co., 772 S.W.2d 72, 73 n. 2
(Tex.1989) (op. on reh’g)) (” ‘ [T]his rule cannot be used
to force a party to make lists or reduce information to
tangible form.’ ” ).
[13] The relators do not complain about the order in so
far as it requires them to produce an affidavit swearing
that no such documents had been submitted to a lender in
the preceding two years.
[1] Patricia F. Miller, Comment, 2003 Texas House Bill
4: Unanimous Exemplary Damage Awards and Texas
Civil Jury Instructions, 37 St. Mary’s L.J. 515, 529
(2006) (citations omitted); see Burk, 616 S.W.2d at 922.
[2] See Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, §
2.12, 1987 Tex. Gen. Laws 37, 44 (amended 1995 &
2003) (current version at Tex. Civ. Prac. & Rem.Code
Ann. §§ 41.001-.013 (Vernon 2008 & Supp. 2009)).
[3] For example, the tort-reform legislation included a
basic cap on exemplary damages. See Act of June 3,
1987, 70th Leg., 1st C.S., ch. 2, § 2.12 sec. 41.007, 1987
Tex. Gen. Laws 37, 46 (amended 1995 & 2003). In
addition, the legislature effectively abrogated the purely
objective method of proving gross negligence. See
Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 20 n. 11
(Tex.1994). However, because this narrower definition of
” gross negligence” applied only to products-liability
cases and certain negligence actions, courts continued to
apply Burk Royalty and Steves Industries to all other
gross-negligence suits. See J. Stephen Barrick, Comment,
Moriel and the Exemplary Damages Act: Texas
Tag-Team Overhauls Punitive Damages, 32 Hous. L.Rev.
1059, 1066 (1995).
[4] See infra pp. 49-50.
[5] See Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§
13.01-.08, 2003 Tex. Gen. Laws 847, 886-89 (current
version at Tex. Civ. Prac. & Rem.Code Ann. §§
41.001-.013 (Vernon 2008 & Supp. 2009)).
[6] See Miller, supra note 1, at 520 (” [T]he unanimity
requirements make it more difficult for a plaintiff to
receive a punitive damage award from a Texas jury.” ).
[7] In fact, some might argue Chapter 41, as currently
constituted, imposes punitive-damage liability only for
intentional torts. See Tex. Civ. Prac. & Rem.Code Ann.
§§ 41.001(7), (11), 41.003(a) (authorizing exemplary
damages only for fraud, malice, and gross negligence,
where malice requires proof of ” a specific intent … to
cause substantial injury or harm” and gross negligence
similarly mandates a showing of the defendant’s (1)
actual, subjective awareness of an extreme degree of risk
and (2) consciously indifferent decision to proceed
nonetheless).
[8] Indeed, discovery into a defendant’s net worth may
consume a disproportionate amount of attention inasmuch
as net worth is only one among several factors a jury
should consider, and not even the most important factor
in reviewing an amount of punitive damages. See Tex.
Civ. Prac. & Rem.Code Ann. § 41.011(a) (Vernon 2008);
Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d
35, 45-46 (Tex.1998) (” [T]he degree of reprehensibility
of the defendant’s conduct is ‘ [p]erhaps the most
important indicium’ of the reasonableness of a punitive
damage award.” ) (quoting BMW of N. Am., Inc. v. Gore,
517 U.S. 559, 575, 116 S.Ct. 1589, 134 L.Ed.2d 809
(1996)). In fact, until Lunsford, a defendant’s net worth
was not even listed as a factor for the jury to consider in
awarding punitive damages. See Lunsford, 746 S.W.2d at
472-73; Alamo Nat’l Bank v. Kraus, 616 S.W.2d 908, 910
(Tex.1981). Even so, a post- Lunsford jury may still
decide on the amount of punitive damages without
considering evidence of the defendant’s net worth. See
Durban v. Guajardo, 79 S.W.3d 198, 210-11
(Tex.App.-Dallas 2002, no pet.).
[9] Closed corporations and closely-held corporations
may present similar, albeit somewhat less serious, issues.
[10] See Sears, Roebuck & Co. v. Ramirez, 824 S.W.2d
558, 559 (Tex.1992) (orig. proceeding). Of course, the
average private individual is highly unlikely to have
audited financial statements readily available.
[11] See id.; see also Wal-Mart Stores, Inc. v. Alexander,
868 S.W.2d 322, 331 (Tex.1993) (Gonzalez, J.,
concurring) (surveying numerous cases precluding
discovery into federal income-tax returns).
[12] For example, in appropriate cases, some trial courts
use a docket-control order to schedule and hear
summary-judgment motions on predicate
exemplary-damage issues in advance of allowing pre-trial
discovery on net worth. This approach could limit
discovery disputes and the potential cost of compliance to
only what is necessarily justified by the facts and claims
of the case. Similarly, trial courts may wish in certain
cases to allow only the threshold discovery of net-worth
amounts by way of limited disclosure at one stage of
pre-trial, and delay discovery as to underlying facts or
methods of calculation of those amounts-potentially
much more invasive and complicated-until a later point
when necessary.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Net Worth and Discoverability in Texas Exemplary Damages Cases–Fort Worth, Texas Civil Litigation Attorneys

The Texas Supreme Court years ago held that net worth is relevant to exemplary damages and therefore discoverable. Lunsford v. Morris, 746 S.W.2d 471, 471 (Tex. 1988) [See below]

Several courts of appeal in Texas have adopted what can be consider a formulaic definition of net worth. These courts have held that essentially net worth is calculated as the difference between total assets and total liabilities as determined by generally accepted accounting principles (GAAP). Newsome v. N. Tex. Neuro-Science Ctr., P.A., No. 08-09-00025-CV, 2009 Tex. App. LEXIS 8628, at *9 (Tex. App. El Paso Nov. 9, 2009, no pet.); In re Jacobs, 300 S.W.3d 35, 46 n.11 (Tex. App. Houston [14th Dist.] 2009, orig. proceeding); Enviropower, L.L.C. v. Bear, Stearns & Co., 265S.W.3d 1, 5 (Tex. App. Houston [1st Dist.] 2008, pet. denied) (en banc); G.M. Houser, Inc. v. Rodgers, 204 S.W.3d 836, 840 (Tex. App. Dallas 2006,
no pet.).

Texas trial courts can abuse their discretion if they fail to determination net worth, when required by the pleadings and evidence. In re Smith, 192 S.W.3d 564, 568 (Tex. 2006).  The Texas statute says that there are six factors a jury should consider in determining the amount of an exemplary damage award. TEX. CIV. PRAC. & REM. CODE ANN. § 41.011(a)(1-6) (Vernon 2008):

Sec. 41.011.  EVIDENCE RELATING TO AMOUNT OF EXEMPLARY DAMAGES.  (a)  In determining the amount of exemplary damages, the trier of fact shall consider evidence, if any, relating to:

(1)  the nature of the wrong;

(2)  the character of the conduct involved;

(3)  the degree of culpability of the wrongdoer;

(4)  the situation and sensibilities of the parties concerned;

(5)  the extent to which such conduct offends a public sense of justice and propriety;  and

(6)  the net worth of the defendant.

(b)  Evidence that is relevant only to the amount of exemplary damages that may be awarded is not admissible during the first phase of a bifurcated trial.

Added by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995.

 

LUNSFORD v. MORRIS 

746 S.W.2d 471 (1988)

Garry LUNSFORD and Robert Dail, Relators, v. Hon. Joseph B. MORRIS, Judge, 101st District Court, Respondent.

Supreme Court of Texas.
Rehearing Denied March 30, 1988.

KILGARLIN, Justice.

At issue in this mandamus proceeding is whether a defendant’s net worth is subject to pre-trial discovery. We hold that such information is relevant to the issue of punitive or, as they are sometimes called, exemplary damages and therefore discoverable under Tex.R.Civ.P. 166b(2). Consequently, we conditionally grant relators’ petition for writ of mandamus.

In the underlying case, relators Lunsford and Dail sued their former employer and others alleging conspiracy and malicious defamation. Their suit sought both actual and punitive damages. In connection with the latter claim, Lunsford and Dail requested production of financial statements and other documents bearing on the defendants’ net worth. The trial court denied the requested discovery,1 and we granted leave to file a petition for writ of mandamus after denial by the court of appeals.

We first consider whether evidence of net worth is discoverable. In Texas, a party “may obtain discovery regarding any matter which is relevant to the subject matter” of a pending action. Tex.R.Civ.P. 166b(2)(a). Further, the same rule provides “it is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

Since the earliest Texas decisions, punitive damages have been allowed, among other things, to punish a wrongdoer. “[P]unitive damages are justified by [a] blending of the interests of society with those of the aggrieved individual, thus giving damages not only to recompense the sufferer, but to punish the offender.” Graham v. Roder, 5 Tex. 141, 149 (1849). In addition to punishment, punitive damages are allowed to deter the same or similar

[746 S.W.2d 472]

future conduct. Cole v. Tucker, 6 Tex. 266, 268 (1851). Our recent decisions have continued to recognize punishment and deterrence as co-purposes of punitive damages awards. See, e.g., Hofer v. Lavender, 679 S.W.2d 470, 474-75 (Tex.1984); Pace v. State, 650 S.W.2d 64, 65 (Tex.1983).At least forty-three states now allow evidence of net worth to be discovered and admitted for the limited purpose of assessing punitive damages.2 Substantial federal court authority also supports the proposition that net worth is admissible on punitive damages.3 The United States Supreme Court recognizes and adheres to the majority view. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 270, 101 S.Ct. 2748, 2761, 69 L.Ed.2d 616 (1981). Also, the Restatement view is in accord: “The wealth of the defendant is also relevant…; the degree of punishment or deterrence resulting from a judgment is to some extent in proportion to the means of the guilty person.” Restatement (Second) of Torts § 908 (comment e) (1977). See also, Prosser & Keeton, Prosser and Keeton on Torts § 2 at 15 (5th ed. 1984).

Texas has allowed neither discovery nor admission of evidence concerning a defendant’s net worth. One hundred years ago, this court determined that the injury inflicted, rather than the ability of a defendant to pay, was the more important consideration. Young v. Kuhn, 71 Tex. 645, 652, 9 S.W. 860, 862 (1888). This view has persisted to the present day despite overwhelming authority to the contrary. See Murphy v. Waldrip, 692 S.W.2d 584, 588 (Tex.App.— Fort Worth 1985, no writ). A defendant’s “ability to pay” bears directly on the question of adequate punishment and deterrence. That which could be an enormous penalty to one may be but a mere annoyance to another. For example, one hundred dollars as a punitive award against a

[746 S.W.2d 473]

single mother of three small children may be a greater deterrent than one hundred thousand dollars awarded against a major corporation whose directors are shielded from the stark reality of harm done by the paneled walls and plush carpet of the corporate boardroom. We hold that in cases in which punitive or exemplary damages may be awarded, parties may discover and offer evidence of a defendant’s net worth.Although the issue in this case is one of discovery of net worth, cases involving admissibility of net worth into evidence are instructive. We therefore review briefly the positions taken in this and in other jurisdictions on discoverability and admissibility of net worth evidence. Just recently this court, in Birchfield v. Texarkana Memorial Hospital d/b/a Wadley Hospital, 747 S.W.2d 361 (1987), held admissible evidence of the financial condition of the hospital to demonstrate the hospital’s ability to provide proper facilities. While it is true that this holding went to a gross negligence inquiry, it nevertheless demonstrates that we have previously permitted admission of evidence of the financial condition of a defendant.

Some states allowing discovery of net worth require a prima facie showing of entitlement to punitive damages before information about a defendant’s net worth may be sought. See, e.g., Curtis v. Partain, 272 Ark. 400, 614 S.W.2d 671 (1981). Other courts would make a plaintiff wait until trial, after the jury has heard evidence warranting punitive damages, before evidence of net worth is introduced. Ruiz v. Southern Pacific Transportation Co., 97 N.M. 194, 638 P.2d 406, 414 (N.M.Ct. App.1981). One state subjects a plaintiff to a show-cause hearing in which a prima facie right to punitive damages must be proved. Leidholt v. District Court, 619 P.2d 768, 771 (Colo.1980). In Wyoming, a plaintiff must overcome two hurdles. First, the plaintiff must make a prima facie showing of entitlement to punitive damages before the trial court permits discovery of net worth. Then, a trial involving punitive damages is bifurcated: a jury must again find a plaintiff is entitled to punitive damages; and then the jury may consider evidence of net worth to determine damages. Campen v. Stone, 635 P.2d 1121, 1132 (Wyo.1981); see also Annot., 32 A.L.R.4th 432 (1984).

Our rules of civil procedure and evidence do not require similar practices before net worth may be discovered. Absent a privilege or specifically enumerated exemption, our rules permit discovery of any “relevant” matter; thus, there is no evidentiary threshold a litigant must cross before seeking discovery. Tex.R.Civ.P. 166b(2)(a). Neither do the rules of evidence contemplate exclusion of otherwise relevant proof unless the evidence proffered is unfairly prejudicial, privileged, incompetent, or otherwise legally inadmissible. Tex.R.Civ. Evid. 401, 403, 501-10, 601. Accord, Coy v. Superior Court, 58 Cal.2d 210, 373 P.2d 457, 23 Cal.Rptr. 393 (1962). We do not circumscribe, however, a trial judge’s authority to consider on motion whether a party’s discovery request involves unnecessary harassment or invasion of personal or property rights. See Tex.R.Civ.P. 166b(5) and compare Tex.R.Civ.P. 13.

Young v. Kuhn, 71 Tex. 645, 9 S.W. 860 (1888), predates both our rules of civil procedure and evidence and is no longer controlling. In a suit in which exemplary damages may be recovered, we hold the defendant’s net worth is “relevant” and therefore discoverable under Tex.R.Civ.P. 166b(2)(a).4 Because no privilege or other specific exemption has been shown, the trial court abused its discretion by refusing to permit the requested discovery. We are confident the trial judge will withdraw his order disallowing discovery of the defendants’ net worth; the writ of mandamus will issue only if he fails to do so. Relators’ request for a writ of prohibition is conditionally dismissed as moot.

CULVER, J., not sitting.

[746 S.W.2d 474]

ON MOTION FOR REHEARING

GONZALEZ, Justice, dissenting.

The court has glossed over the fact that this is a mandamus proceeding. Since the trial judge was following over 100 years of precedent, it is preposterous to conclude that he clearly abused his discretion. I would grant the motion for rehearing, and deny the writ. In the alternative, we should adopt some guidelines and/or make rule changes in order to avoid some of the practical problems that will arise as the bench and the bar struggle to implement this decision.

We have considered mandamus to be proper in some cases to compel a trial court to allow discovery. Jampole v. Touchy, 673 S.W.2d 569, 572-573 (Tex.1984); Allen v. Humphreys, 559 S.W.2d 798 (Tex.1977); Barker v. Dunham, 551 S.W.2d 41 (Tex. 1977). In addition, mandamus has been issued to correct improper allowances of discovery by a trial court. See, e.g., General Motors Corp. v. Lawrence, 651 S.W.2d 732 (Tex.1983); West v. Solito, 563 S.W.2d 240 (Tex.1978); Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959). However, mandamus is an extraordinary writ that should be used only when there has been a violation of a clear right possessed by the relator. Neville v. Brewster, 163 Tex. 155, 352 S.W.2d 449, 452 (1961); See State Bar of Texas v. Heard, 603 S.W.2d 829, 833 (Tex.1980).

Under Young v. Kuhn, 71 Tex. 645, 9 S.W. 860 (1886) and its progeny, the trial court in this case did not abuse its discretion in disallowing the discovery. Our most recent cases establish that a relator who attacks a trial court ruling as an abuse of discretion “labors under a heavy burden…. The relator must establish, under the circumstances of the case, that the facts and law permit the trial court to make but one decision.” Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985). In our case, the court had but one choice—to follow our pronouncements that a defendant’s net worth was neither discoverable nor admissible to prove punitive damages. It would have been an abuse of discretion for the trial court to grant the discovery request under the law as it existed at that time. Therefore, the mandamus should be denied.1

The majority opinion does not decide the question of admissibility of net worth evidence. Without guidelines and/or corresponding rule changes, we have needlessly planted the seeds of confusion that will result in years of litigation as practitioners and the bench strive to comply with this opinion.

In order for the benefits sought to be achieved by the court’s opinion to fully inure to the citizens of Texas, the procedure employed to offer evidence of net worth must allow the defendant’s conduct to be judged as much as possible in a prejudice-free atmosphere. It is clear that the ability of a defendant to pay has no relevance to the issues of liability or compensatory damages. Accordingly, there is no legitimate need for a jury to be made aware of a defendant’s net worth when determining these issues.

To preserve the right of all litigants to a fair trial, we should adopt procedural guidelines for cases where punitive damages may be awarded and pre-trial discovery and presentation of net worth evidence is permissible. The utilization of a bifurcated trial procedure would prevent net worth evidence from prejudicially impacting liability and compensatory damage findings when punitive damages are claimed. The idea of a bifurcated trial procedure to separately determine issues of liability and damages is not new. Federal

[746 S.W.2d 475]

district courts are empowered with discretionary authority to order a bifurcated trial for this purpose. Fed.R.Civ.P. 42(b); see 9 Wright & Miller, Federal Practice and Procedure §§ 2388-2390 (1971); see also Annotation, Propriety of Ordering Separate Trials as to Liability and Damages, Under Rule 42(b) of Federal Rules of Civil Procedure in Actions Involving Personal Injury, Death or Property Damage, 78 A.L.R.Fed. 890 (1986). This procedure has recently been upheld for use in Texas diversity actions. Rosales v. Honda Motor Co. Ltd., 726 F.2d 259, 260 (5th Cir.1984).The Supreme Court of Wyoming in Campen v. Stone, 635 P.2d 1121, 1131 (Wyo. 1981) recently instituted a bifurcated trial procedure to remedy a situation similar to that which has been created by the majority opinion. The “Wyoming Plan,” which requires that plaintiffs make a prima facie showing that a viable issue exists for punitive damages before pre-trial discovery is permitted, provides a good model for Texas. A bifurcated trial procedure would work as follows:

1. The plaintiff would claim in his petition a right to punitive damages and then seek pre-trial discovery of defendant’s net worth.2. The defendant would move for a protective order requiring the plaintiff to make a prima facie showing to the trial court that a viable issue exists for punitive damages. Upon such a showing, the pretrial discovery would be allowed. If plaintiff’s claim for punitive damages is groundless and brought in bad faith, Tex.R.Civ.P. 13 authorizes the trial court to impose sanctions.3. At trial, if sufficient evidence is produced establishing a prima facie case for punitive damages, the jury charge would make provision for compensatory damages and additionally ask the jury whether punitive damages should or should not be awarded. However, no provision would be made for the jury to determine the amount of punitive damages to be awarded at that point.4. If the jury finds that punitive damages should be awarded, it would then hear evidence of the defendant’s net worth and return a separate verdict setting the amount of punitive damages.See Campen v. Stone, 635 P.2d at 1132; see also Annotation, Necessity of Determination or Showing of Liability for Punitive Damages Before Discovery or Reception of Evidence of Defendant’s Wealth, 32 A.L.R. 4th 432 (1984). Under this plan, the admission of net worth evidence would constitute reversible error only during the first stage of a bifurcated trial.

I am also concerned that the court’s opinion will create uncertainty regarding a number of other issues. The most apparent area of uncertainty is the failure to define the term “net worth”. No fewer than eighteen times does the court’s opinion refer to “net worth”. However, despite the repetitious use of this term, the court has failed to inform the bench and bar what “net worth” is or how it should be calculated. Is a single balance sheet sufficient to identify “net worth” or is additional financial information necessary? Since “net wealth” was what the petitioner actually requested to be discovered in this case, is this synonymous with “net worth?” How do we measure net worth? Do we prove “net worth” by profit and loss statements, income tax returns, cash liquidity, a Fortune 500 listing, Standard & Poor’s rating, and the like? “I know it when I see it” is not much of a standard. Without objective criteria, a case by case determination will undoubtedly yield a wide disparity of results. Perhaps we should refer all of these questions to our Rules of Procedure and/or Evidence committees for recommendations. In the absence of guidance, confusion will prevail as practitioners and judges attempt to ascertain the components of “net worth”.

Aside from definitional problems, the respondent raises many questions in his motion for rehearing. For example:

[746 S.W.2d 476]

Does a defendant’s net worth include the cash surrender value or the limits of liability of an insurance policy? If the insurer is defending under a reservation of rights, would the insurance still be includable in the calculation of the assets? Likewise, would it make a difference if the defendant’s insurance policy did or did not provide coverage for exemplary damages?Assuming that a plaintiff attempts to offer net worth evidence that includes insurance coverage, the defendant should be able to keep this out pursuant to Tex.R.Civ. Evid. 411 which provides that liability insurance is inadmissible to prove negligent or otherwise wrongful conduct. Alternatively, such evidence could be kept out on the theory that the insurer’s duty to indemnify depends on a liability adjudication against the insured without respect to the insurer’s potential liability. The trial court judge would also have the discretion under Tex.R.Civ.Evid. 403 to exclude the evidence as misleading or unfairly prejudicial.

In an action against a corporate division or subsidiary should the net worth of the of the parent be considered? Would a different rule apply to a non-profit defendant?Once again, these questions involve considerations that properly should be balanced by the trial court judge pursuant to Tex.R.Civ.Evid. 403 when deciding the issue of admissibility.

Will a plaintiff be entitled to only an interrogatory answer stating what defendant’s net worth is, or will a plaintiff be entitled to all of the underlying financial data necessary to make his own calculations?During discovery a plaintiff should generally be entitled to copy, at his own expense, all of the relevant financial documents. However, this will be problematic since the components of “net worth” are unknown. Consequently, the trial court will need to determine exactly what constitutes “net worth” and then decide which documents are relevant to calculate “net worth”. As discussed previously, this situation is unsatisfactory and needs to be remedied by a clear definition of the term “net worth.”

At what point in time is a defendant’s net worth relevant? Should the jury receive evidence of net worth as of the time the conduct occurred or at the time of trial which may be several years later?Generally, assuming liability for punitive damages, evidence of defendant’s net worth at the time of the conduct, as well as subsequent gains and losses, is at least relevant and may be considered by a jury. However, since this issue also involves considerations of admissibility it would need be resolved by the trial court on a case by case basis. Tex.R.Civ.Evid. 611 provides that the trial court “shall exercise reasonable control over the mode and order of … presenting evidence as to (1) make the … presentation effective for the ascertainment of the truth….”

What safeguards exist to ensure that a relatively poor defendant in a multi-defendant case will not be unjustly punished by a jury on the basis of information of the other defendant’s ability to pay a large judgment?Recent tort reform legislation provides the answer to any possible problem in this area.

In any action in which there are two or more defendants, an award of exemplary damages must be specific as to a defendant, and each defendant is liable only for the amount of the award made against that defendant.Tex.Civ.Prac. & Rem.Code § 41.005 (Vernon Supp.1988). This recently enacted statute codified what undoubtedly was the common law. It provided that no defendant should be subject to primary or contributory liability for exemplary damages based upon conduct attributable to another tortfeasor. Similarly, the financial resources of any one defendant should not be relevant to punitive damages awarded against another defendant. See also Tex. R.Civ.Evid. 105(a) (when evidence is admissible as to one party but not admissible as to another, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly).

[746 S.W.2d 477]

In summary, I would grant the motion for rehearing and deny the writ. In the alternative, I would adopt the above guidelines.PHILLIPS, Chief Justice, dissenting.

ON MOTION FOR REHEARING

I join in that portion of Justice Gonzalez’s dissent which discusses the nature of the writ of mandamus. I do not believe the trial judge clearly abused his discretion in this case. The resolution of this issue, although important to the jurisprudence of the state, should properly await another day.

In light of that conclusion, I do not join in the remainder of Justice Gonzalez’s opinion. In particular, I disagree with the apparent suggestion that this court should mandate a bifurcated trial whenever punitive damages are to be awarded. I believe this is an unnecessarily cumbersome means of protecting the defendant’s legitimate interests against prejudice and the invasion of privacy. The trial court can more efficiently accomplish these objectives by placing limits on the scope and nature of discovery, issuing protective orders, and giving such jury instructions as may be appropriate.

I agree with Justice Gonzalez’s observation that most of the questions raised by respondent are properly left to the discretion of the trial court. The trial court is in the best position to determine how to balance the right to legitimate discovery with the right to avoid harassment or prejudice. The exact parameters of this new right to discovery, including those problems raised in the remainder of Justice Gonzalez’s dissent, should be resolved in subsequent litigation by the orderly development of case authority.

FootNotes

1. The order denying discovery was signed by Judge Craig T. Enoch, then judge of the 101st District Court. Relators originally named Judge Enoch as respondent in C-4407. While C-4407 was pending before our court, Judge Joseph B. Morris (the present respondent) succeeded Judge Enoch as judge of the 101st District Court. We abated our proceedings so that Judge Morris would have an opportunity to reconsider Judge Enoch’s order denying discovery. By an order signed on September 8, 1987, Judge Morris “affirmed and adopted” Judge Enoch’s prior order.In a separate cause numbered C-5649, relators petitioned this court to prohibit Judge Enoch (later Judge Morris) from proceeding to trial pending our disposition of the mandamus requested in C-4407.

2. Clary Ins. Agcy. v. Doyle,620 P.2d 194, 205 (Alaska 1980); Grant v. Arizona Public Service Co.,133 Ariz. 434, 652 P.2d 507, 522 (1982); Berkeley Pump Co. v. Reed-Joseph Land Co.,279 Ark. 384, 653 S.W.2d 128, 137 (1983); Coy v. Superior Court,58 Cal.2d 210, 373 P.2d 457, 23 Cal.Rptr. 393 (1962); Leidholt v. District Court,619 P.2d 768, 770 (Colo.1980); Bennett v. Hyde, 6 Conn. 24 (1825); Bryan v. Thos. Best & Sons, Inc.,453 A.2d 107, 108 (Del.Super.1982); Rinaldi v. Aaron,314 So.2d 762, 763 (Fla.1975); Wilson v. McLendon,225 Ga. 119, 166 S.E.2d 345, 346 (1969); Beerman v. Toro Mfg. Corp., 1 Haw.App. 111, 615 P.2d 749, 755 (1980); Cheney v. Palos Verdes Inv. Corp.,104 Idaho 897, 665 P.2d 661, 666-67 (1983); Moore v. Jewel Tea Co.,116 Ill.App.2d 109, 135, 253 N.E.2d 636, 648 (1969), aff’d,46 Ill.2d 288, 263 N.E.2d 103 (1970); Hibschman Pontiac, Inc. v. Batchelor, 266 Ind. 310, 362 N.E.2d 845 (1977); Hall v. Montgomery Ward & Co.,252 N.W.2d 421, 424 (Iowa 1977); Ettus v. Orkin Exterminating Co., Inc.,233 Kan. 555, 665 P.2d 730, 738 (1983); Hale v. Aetna Casualty & Surety Co.,273 So.2d 860, 863 (La. App.1973); Hanover Ins. Co. v. Hayward,464 A.2d 156, 158 (Me.1983); Heinze v. Murphy, 180 Md. 423, 24 A.2d 917 (1942); Pedersen v. Jirsa,267 Minn. 48, 125 N.W.2d 38, 41 (1963); Hunter v. Williams,230 Miss. 72, 92 So.2d 367, 369 (1957); Golston v. Lincoln Cemetery, Inc.,573 S.W.2d 700, 708 (Mo.1978); Edquest v. Tripp & Dragstedt Co., 93 Mont. 446, 19 P.2d 637, 640-41 (1933); Southern Pacific Co. v. Watkins, 83 Nev. 471, 435 P.2d 498, 513 (1967); Belknap v. Railroad, 49 N.H. 358 (1870); Gierman v. Toman,77 N.J.Super. 18, 185 A.2d 241, 245 (1962); Aragon v. General Electric Credit Corp.,89 N.M. 723, 557 P.2d 572, 575 (Ct.App.1976); Rupert v. Sellers,48 A.D.2d 265, 368 N.Y.S.2d 904, 910-13 (1975); Harvel’s Inc. v. Eggleston,268 N.C. 388, 150 S.E.2d 786, 790 (1966); King v. Hanson, 13 N.D. 85, 99 N.W. 1085, 1092 (1904); Wagner v. McDaniels,9 Ohio St.3d 184, 459 N.E.2d 561, 564 (1984); Smith v. Autry, 69 Okl. 28, 169 P. 623 (1918); Pelton v. General Motors Acceptance Corp., 139 Or. 198, 7 P.2d 263, 266 (1932); Aland v. Pyle, 263 Pa. 254, 106 A. 349 (1919); Hargraves v. Ballou, 47 R.I. 186, 131 A. 643, 646 (1926); Hicks v. Herring,246 S.C. 429, 144 S.E.2d 151, 154 (1965); Smith v. Weber, 70 S.D. 232, 16 N.W.2d 537, 540 (1944); Odom v. Gray,508 S.W.2d 526 (Tenn.1974); Wilson v. Oldroyd,1 Utah.2d 362, 267 P.2d 759, 766 (1954); Parker v. Hoefer, 118 Vt. 1, 100 A.2d 434, 446-47 (1953); Weatherford v. Birchett, 158 Va. 741, 164 S.E. 535, 537 (1932); Riddle v. McGinnis, 22 W.Va. 253 (1883); Wangen v. Ford Motor Co.,97 Wis.2d 260, 294 N.W.2d 437, 447 (1980); Town of Jackson v. Shaw,569 P.2d 1246, 1255 (Wyo. 1977).

3. Ramsey v. Culpepper,738 F.2d 1092, 1099 (10th Cir.1984); (New Mexico law); Brink’s Inc. v. City of New York,717 F.2d 700, 707 (2nd Cir.1983) (New York law); Spaeth v. Union Oil Co. of California,710 F.2d 1455, 1460 (10th Cir.1983), Malandris v. Merrill Lynch,703 F.2d 1152, 1177 (10th Cir.1981) (Colorado law); Harris v. Harvey,605 F.2d 330, 340-41 (7th Cir. 1979); Fury Imports, Inc. v. Shakespeare Co.,554 F.2d 1376, 1389 (5th Cir.1977) (New York law); Herman v. Hess Oil Virgin Islands Corp.,524 F.2d 767, 772 (3rd Cir.1975); Clark v. Bunker,453 F.2d 1006, 1012 (9th Cir.1972).

4. We view as unnecessary and ill-advised any attempt on the limited record before us to address admissibility concerns raised in the motions for rehearing. This includes matters pertaining to when net worth is admissible, how it will be admitted, or what it means.

1. It doesn’t make any sense to say that the purpose of punitive damages is to deter others and to punish wrongdoers and then keep evidence of wealth from the jury. So, generally, I agree with the court that a jury should be able to consider the financial condition of the defendant in order to determine exemplary damages. Thus, the question is not if this evidence is relevant but when it is relevant. However, the more basic question here is whether the writ of mandamus is a proper way or vehicle to make this substantive change in the law. I don’t think so. If we had intended to overrule Young v. Kuhn, and its progeny when Tex.R.Civ. P. 166b was changed, we certainly would have announced our intention.

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

 

 

Some United States Case Law Regarding Event Data Recorders (EDR’s)–Fort Worth, Texas Trucking Defense Attorneys

 

 

New York v. Christmann, Newark Village Court, Case No. 03110007 (2004) This was a nonjury criminal trial on a speeding citation. The defendant was found guilty of speeding, using EDR evidence, when his vehicle struck and killed a pedestrian.

 

Bachman, et al, v. General Motors Corp., Uftring Chevrolet-Oldsmobile, Delphi Automotive Systems and Delco Electronics Systems, Illinois App. Ct., 4th Dist., No. 4-01-0237, Appeal from Circuit Court of Woodford County, Case No. 98L21 (2002). This is an appellate decision finding SDM data acquisition is not new or novel and meets the Frye standard for admissibility. SDM data was admitted into evidence in the civil trial.
Illinois v. Barham, Illinois App. Ct, 5th Dist., No. 5-02-0047, Appeal from the Circuit Court of Johnson County, Case No. 00-CF-90 (2003). This is an appellate decision in a criminal case where EDR evidence was introduced regarding the vehicle’s speed. The conviction was overturned by the appellate court on grounds other than those relating to the EDR evidence.

 

 

Anderson-Barahona v. General Motors Corp., No. 99A19714, GA, Cobb County Cir. Ct., Apr. 7, 2000. In this case, the plaintiff sought data from GM to help prove a defect caused the car to accelerate suddenly to 90 mph resulting in a crash.
Florida v. Walker, 20th Judicial Circuit, Lee County, Case No. 00-002866CF RTC (2003). This was a criminal case with a two vehicle, head-on collision. The defendant was charged with two counts of Vehicular Homicide. At issue was the defendant’s speed and in which lane the collision occurred. The EDR provided evidence the defendant was not speeding at the time of the collision. The jury found the defendant not guilty.
Pennsylvania v. Rhoads, Montgomery County, Court of Common Pleas, Criminal Division, Docket No. 746701 (2002). This was a criminal case where the defendant pled guilty. It was a two vehicle accident in which the EDR in the defendant’s vehicle, a 2001 Chevrolet Corvette, reported a speed of 106 mph.

 

Wisconsin v. Furst, Outagamie County Circuit Court, Case No. 00CF667 (2001). This was a criminal case where the defendant was charged with two counts of Homicide by the Intoxicated Use of a Motor Vehicle. The EDR was recovered from the victim’s vehicle, a 1998 Buick Le Sabre, in which two occupants were killed. The jury found the defendant guilty on both counts.

 

Florida v. Matos, 17th Judicial Circuit, Broward County, Case No. 02015762 CF 10A (2003). This was a criminal case with two counts of Vehicular Homicide. EDR evidence relating to vehicle speed was introduced and the case went to a jury. A Frye Hearing was held on the admissibility of the EDR evidence. The defendant was convicted by a jury.

 

Wisconsin v. Martinez, Brown County Circuit Court, Case No. 01CF766 (2002). This was a criminal case where the defendant was charged with Homicide by the Intoxicated Use of a Motor Vehicle. The EDR data was recovered from the defendant’s 2000 Pontiac Trans Am. The defendant pled guilty.

 

 

South Carolina v. Cassels, Beaufort County, General Session Indictment No. 2002 GF 070372 (2003). This was a criminal case with one count of reckless homicide. The EDR indicated the Defendant was traveling at 98 mph with 100% throttle. The police speed estimate was 82 to
96 mph at impact with another vehicle. The jury returned a guilty verdict.

 

Florida v. Ubals, 17th Judicial Circuit, Broward County, Case No. 01017144 CF 10A (2003). This was a criminal case with two counts of DUI Manslaughter and two counts of Vehicular Homicide. The defendant was found guilty in a jury trial.
California v. Sanchez, Ventura County, Case No. 2001 9000 34 (2003). This was a murder case where the vehicle was not the weapon. EDR evidence was admitted.

 

Michigan v. Wood, Charlotte, Eaton County, Case No. 02 283 FH (2003) Admission of the EDR data over the objection of the defense where the defendant brought a “Davis-Frye” motion. The evidence was admitted.

 

 

South Dakota v. Janklow, 3rd Cir., Moody County, Case No. 03-147 (2003) This was a two vehicle accident involving a car and a motorcycle. The defense entered data from the EDR in the defendant’s 1995 Cadillac without objection from the prosecution. The defendant was found guilty.

A Review of Jurisprudence Regarding Event Data Recorders: Implications for the Access and Use of Data for Transport Canada Collision Investigation, Reconstruction, Road Safety Research and Regulation Robert N. Green, LLB, MD Kevin J. McClafferty, BESc University of Western Ontario Multi-disciplinary Accident Research Team

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

 

Constructive Knowledge of Dangerous Conditions in Texas Premises Liability Cases–Fort Worth, Texas Non Subscriber Attorneys

 

The mere fact that a store employee is simply in close proximity to a dangerous or hazardous condition does not replace what is called in Texas, “the time-notice rule”. Constructive knowledge of a dangerous condition can be shown by proof that the dangerous or hazardous condition in dispute had existed for a reasonably long enough period of time  that the premises owner reasonably should have discovered it. This is known as the “time-notice rule,” and the Texas Supreme Court has repeatedly held that “temporal evidence best indicates whether the owner had a reasonable opportunity to discover and remedy a dangerous condition.” As the Texas Supreme Court stated in Wal-Mart Stores, Inc. v. Reece, 81 SW.3d 812, 816 (Tex. 2002):

 

An employee’s proximity to a hazard, with no evidence indicating how long
the hazard was there, merely indicates that it was possible for the
premises owner to discover the condition, not that the premises owner
reasonably should have discovered it. Constructive notice demands a more
extensive inquiry. Without some temporal evidence, there is no basis upon
which the factfinder can reasonably assess the opportunity the premises
owner had to discover the dangerous condition.
Without the time related requirement of the, owners of real property could be subject to strict liability claims for any dangerous or hazardous condition on the premises, which would be in itself unreasonable.

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Texas Non-Subscriber Compliance Package-Texas Department of Insurance—-Fort Worth, Texas Non Subscriber Defense Lawyers

NonSubscriber – Compliance Package
This is a copy of Texas Department of Insurance change notice
dated September 24, 2012.
We have enclosed the forms that are so vital in maintaining your status as a
Non-Subscriber in the state of Texas. They include:
1. The DWC Form-005 (Rev. 01/13) that you must complete
annually between February 1st and April 30th.
Complete and send in to the state by Certified Mail, return
receipt requested. You can now file your DWC Form 5 on-line:
https://txcomp.tdi.state.tx.us/TXCOMPWeb/nonsubscriber/DW
C5NonSecure.do?startWizard=Y&isBackAllowed=N . Texas
Department of Insurance is now requiring effective dates be
listed in Section I; Question 1. Effective date must be May 1st
of current year and expiration date April 30th of next year.
2. The DWC Form-7 that you need to complete to report any
claims. Send in monthly, only if there were injuries that
resulted in lost time in excess of the date of the injury.
3. The “Notice to Employees” that you must have all current
employees sign. All employees must sign this form when they
are hired and then placed in their personnel file.
4. The posters that are required to be posted “in an area frequented
by the employees”. The “Notice to Employees concerning
Workers’ Compensation in Texas” must be posted in both
English and Spanish and any other appropriate language.
DWC005
DWC005 Rev. 01/13 Page 1 of 3
Texas Department of Insurance
Division of Workers’ Compensation
7551 Metro Center Drive, Suite 100 • MS-96
Austin, TX 78744-1645
(800) 372-7713 phone • (512) 804-4146 fax
Employer Notice of No Coverage or Termination of Coverage
Online submission available through Employer Online Filings at:
https://txcomp.tdi.state.tx.us/TXCOMPWeb/common/home.jsp
I. REQUIRED STATEMENTS
1. Statement of No Coverage
The employer named below DOES NOT HAVE workers’ compensation insurance coverage, pursuant to the
Texas Workers’ Compensation Act, Texas Labor Code, Section 406.004.
The employer named below HAS TERMINATED workers’ compensation insurance coverage, pursuant to the
Texas Workers’ Compensation Act, Texas Labor Code, Section 406.007.
Policy terminated effective (mm/dd/yyyy):
Policy number:
Insurance company name:
Insurer informed of termination on (mm/dd/yyyy):
Employees were (will be) notified on (mm/dd/yyyy):
The election selected above is effective from (mm/dd/yyyy) to (mm/dd/yyyy). The effective
dates cannot exceed a one-year period.
2. Statement of Reportable Injuries or Diseases
Did you have any death, injury that resulted in the injured employee’s absence from work for more than one day,
or knowledge of an occupational disease since your last Employer Notice of No Coverage or Termination of
Coverage?
Yes No If your response is “Yes”, you may be required to file a DWC Form-007, Employer’s Report of
Non-covered Employee’s Occupational Injury or Disease. (See the Frequently Asked Questions section of this form.)
II. PRIMARY EMPLOYER INFORMATION
3. Employer Business Name
4. Federal Employer ID Number
5. Employer Business Mailing Address (Street or PO Box, City, County, State, Zip Code)
6. Employer Business Type
7. Six-Digit NAICS Codes
NOTE: You must provide name, Federal Employer ID number and address of each Texas business location, subsidiary, or
separate entity of the primary employer covered by this report. To identify additional locations, submit a DWC Form-205,
Locations of Employer’s Business(es).
III. PERSON PROVIDING INFORMATION
8. Printed Name
9. Phone Number
10. Title
11. E-mail Address
12. Signature 13. Date of Signature (mm/dd/yyyy)
For TDI-DWC Use Only
DWC005
DWC005 Rev. 01/13 Page 2 of 3
Frequently Asked Questions
Employer Notice of No Coverage or Termination of Coverage
Who must file the DWC Form-005?
An employer who does not have workers’ compensation insurance (non-subscriber) must file the DWC
Form-005, unless the employer’s only employees are exempt from coverage under the Texas Workers’
Compensation Act (for example, certain domestic workers, certain farm and ranch workers).
An employer who terminates workers’ compensation insurance coverage must file the DWC Form-005.
Failure to file the form when required may subject the employer to administrative penalties.
When do I file the DWC Form-005?
An employer who uses the DWC Form-005 to file a notice of no coverage must file:
• annually between February 1st and April 30th of each calendar year;
• within 30 days of the employer hiring its first employee, unless this due date falls between
February 1st and April 30th and the employer submits the notice within this time period; and
• within 10 days of receipt of a TDI-DWC request for filing a notice of no coverage.
An employer who uses the DWC Form-005 to file a notice of termination of coverage must file:
• within 10 days after notifying the insurance carrier of the termination of coverage unless
the employer purchases a new policy or becomes a certified self-insurer; and
• thereafter, the employer must file the DWC Form-005 as a non-subscriber as long as the
employer remains in operation and does not have workers’ compensation insurance
coverage.
How do I file the DWC Form-005?
Employers can submit the DWC Form-005 to the TDI-DWC by:
• filing electronically on the TDI website at:
https://txcomp.tdi.state.tx.us/TXCOMPWeb/common/home.jsp;
• faxing the form to (512) 804-4146; or
• mailing the form to the address listed at the top of the form (if the filing is for termination of
coverage, the submission must be by certified mail).
How/when must a non-subscriber notify employees that workers’ compensation coverage is not
provided?
An employer must post the Notice to Employees Concerning Workers’ Compensation in Texas in the
workplace in English, Spanish and any other language common to the employer’s employee population
in the print type specified by TDI-DWC rules whenever the employer:
• elects to not have workers’ compensation insurance;
• cancels or terminates workers’ compensation insurance;
• withdraws from certified self-insurance; or
• has its workers’ compensation coverage cancelled by the insurance company.
DWC005 Rev. 01/13 Page 3 of 3
The employer must also provide this notice to each employee:
• at the time of hire;
• when the employer elects to not have workers’ compensation insurance;
• within 15 days of notification to the insurance carrier that the employer is terminating coverage
unless the employer maintains continuous coverage under a new policy or becomes a certified
self-insurer; or
• within 15 days of cancellation by the insurance company.
The required notice may be found on the TDI website at:
http://www.tdi.texas.gov/forms/dwc/notice5.pdf (English) and
http://www.tdi.texas.gov/forms/dwc/notice5s.pdf (Spanish).
Are non-subscribers required to file other forms with the TDI-DWC?
Employers with five or more employees are required to report work-related injuries and diseases to the
TDI-DWC. Non-subscribers and covered employers whose employee(s) have waived workers’
compensation insurance coverage must report these work-related injuries and diseases using the DWC
Form-007, Employer’s Report of Non-covered Employee’s Occupational Injury or Diseases. The form
must be filed not later than the 7th day of the month following the month in which:
• a work-related death occurred,
• an employee was absent from work for more than one day* as a result of an on-the-job injury, or
• the employer acquired knowledge of an occupational disease.
*Do not count the day of the injury or the day the injured employee returned to work when calculating
the number of days absent from work.
The DWC Form-007 can be obtained from the TDI website at:
http://www.tdi.texas.gov/forms/dwc/dwc7.pdf.
Are any fields on the DWC Form-005 optional?
No, all applicable fields must be completed each time the DWC Form-005 is filed.
Additional information can be obtained from the TDI website at:
http://www.tdi.texas.gov/wc/employer/index.html or by calling 1-800-372-7713.
NOTE: With few exceptions, upon your request, you are entitled to be informed about information TDI-DWC
collects about you; receive and review the information (Government Code, §§552.021 and 552.023); and have
TDI-DWC correct information that is incorrect (Government Code, §559.004).
Texas Department of lnsurance
Division of Workers’ Compensation
7551 Metro Center Drive. Suite 100. MS-96
Austin,T X 78744-1645
(8001 372-7713 phons . (5’12) 8044146 tax
Locations of Employer’s Business(es)
Addendum to DWG Form-005 or DWC Form-020
Type or print each item on this form in black ink
Gheck the appropriate box:
|-f AddendumtoDWGForm-005 EmployerNoticeof NoCoverageorTerminationof Coverage
I Addendum to DWC Form-020 lnsurance Carrier Notice of Coverage or Cancellation/Non-renewal
I. PRIMARY EMPLOYER INFORMATION
DWC205
ForT DI-DWCU seO nly
of Coverage
PrimaryE mployer’Bs usinessN ame FederaEl mployelrD Number
II.A DDITIONALB USINESSL OCATIONS
Use this section to add or delete coverage for locations, subsidiaries, and/or separate entities of the primary employer.
Check One: LIADD I_IDELETE Effective Date
Name Federal Employer lD Number
Address (Street or PO Box, City State Zip)
Check One: IIADD IIDELETE Effective Date
Name Federal Employer lD Number
Address (Street or PO Box, City State Zip)
Check One: IJADD IJDELETE Effective Date
Name Federal Employer lD Number
Address (Street or PO Box, City State Zip)
CheckOne: IIADD IfDELETE Effective Date
Name Federal Employer lD Number
Address (Street or PO Box, City State zip)
Check One: LJADD IJDELETE Effective Date
Name Federal Employer lD Number
Address (Street or PO Box, City State Zip)
Check One: IIADD LIDELETE Effective Date
Name Federal Employer lD Number
Address (Street or PO Box, City State Zip)
Gheck One: EADD EDELETE Effective Date
Name Federal Employer lD Number
Address (Street or PO Box, City State Zip)
NOTE: With few exceptions, upon your request, you are entitled to be informed about information TDI-DWC collects about you; receive and review
the information( GovemmentG ode,9 9552.021a nd 552.023)a; nd haveT DI-DWCc orrect informationt hat is incoriect (GovernmenCt ode,5 559.004).
DWC20R5 ev1. 1l10
DWC007
DWC007 Rev. 01/13 Page 1 of 5
Texas Department of Insurance
Division of Workers’ Compensation
7551 Metro Center Drive, Suite 100 • MS-96
Austin, TX 78744-1645
(800) 372-7713 phone • (512) 804-4146 fax
Employer’s Report of Non-covered Employee’s Occupational Injury or Disease
Type or print in black ink
Non-subscribing Employer
Subscribing Employer – Employee Waived Workers’ Compensation Insurance Coverage
I. EMPLOYER INFORMATION
1. Employer Business Name
2. Reporting Period (mm/yyyy) 3. Number of Injured Employees Included on This Report
4. Employer Business Mailing Address
(Street or PO Box, City, County, State, Zip Code)
5. Provide the following:
NAICS
Codes
NAICS
Employment
6. Employer Physical Address (Street, City, State, Zip Code)
7. Employer Phone Number
8. Federal Employer ID Number
9. Name of Person Completing Form
10. Phone Number of Person Completing Form
11. Title of Person Completing Form
12. Signature of Person Completing Form 13. Date of Signature (mm/dd/yyyy)
II. INJURED EMPLOYEE INFORMATION / INJURY DATA
14. Employee Name (First, Middle, Last) 15. Employee’s SSN
16. Date of Birth (mm/dd/yyyy) 17. Date of Hire (mm/dd/yyyy) 18. Sex
Male Female
19. Occupation 20. Hourly Wage 21. Employee NAICS Code
22. Race/Ethnic Identification
White Black Hispanic Asian or Pacific Islander American Indian or Alaskan Native
Other (specify)
For TDI-DWC Use Only
DWC007
DWC007 Rev. 01/13 Page 2 of 5
23. Address Where Injury/Occupational Disease Occurred (Street, City, State, Zip Code)
24. Type of Location Where Injury/Occupational Disease Occurred
Primary Business Location On-site Job Location Traveling between Job Locations
25. Date of Injury/Occupational Disease (mm/dd/yyyy) 26. Date Reported By Employee (mm/dd/yyyy)
27. Return to Work Date or Expected Date (mm/dd/yyyy)
28. Reported Cause of Injury
29. Nature of Injury/Occupational Disease
30. Equipment Involved in the Injury (if any)
31. Body Part(s) Affected
32. First Day of Absence from Work (mm/dd/yyyy) 33. Number of Days Absent from Work
1 Day or Less >1 Day – 7 Days 8 Days or More
34. Occupational Disease
Yes No
35. Fatality Yes No
If Yes, provide date (mm/dd/yyyy)
36. Description of Incident
NOTE1: Title 28 Texas Administrative Code, Chapter 160 requires employers to report work-related deaths, on-the-job
injuries and occupational diseases in the form and manner required by TDI-DWC. The social security number may be used
to identify the injured employee.
NOTE2: With few exceptions, upon your request, you are entitled to be informed about information TDI-DWC collects about
you; receive and review the information (Government Code, §§552.021 and 552.023); and have TDI-DWC correct information
that is incorrect (Government Code, §559.004)
Employer’s Name:
Employer’s FEIN:
For TDI-DWC Use Only
DWC007
DWC007 Rev. 01/13 Page 3 of 5
Injury Data for Additional Injured Employee(s)
(reproduce this page, if necessary)
Employer Business Name
Employer FEIN Reporting Period (mm/yyyy)
II. INJURED EMPLOYEE INFORMATION / INJURY DATA
14. Employee Name (First, Middle, Last) 15. Employee’s SSN
16. Date of Birth (mm/dd/yyyy) 17. Date of Hire (mm/dd/yyyy) 18. Sex
Male Female
19. Occupation 20. Hourly Wage 21. Employee NAICS Code
22. Race/Ethnic Identification
White Black Hispanic Asian or Pacific Islander American Indian or Alaskan Native
Other (specify)
23. Address Where Injury/Occupational Disease Occurred (Street, City, State, Zip Code)
24. Type of Location Where Injury/Occupational Disease Occurred
Primary Business Location On-site Job Location Traveling between Job Locations
25. Date of Injury/Occupational Disease (mm/dd/yyyy) 26. Date Reported By Employee (mm/dd/yyyy)
27. Return to Work Date or Expected Date (mm/dd/yyyy)
28. Reported Cause of Injury
29. Nature of Injury/Occupational Disease
30. Equipment Involved in the Injury (if any)
31. Body Part(s) Affected
32. First Day of Absence from Work (mm/dd/yyyy) 33. Number of Days Absent from Work
1 Day or Less >1 Day – 7 Days 8 Days or More
34. Occupational Disease
Yes No
35. Fatality Yes No
If Yes, provide date (mm/dd/yyyy)
36. Description of Incident
For TDI-DWC Use Only
DWC007
DWC007 Rev. 01/13 Page 4 of 5
Frequently Asked Questions
Employer’s Report of Non-covered Employee’s Occupational Injury or Disease (DWC Form-007)
Which employers are required to report on-the-job injuries, occupational diseases, and workrelated
deaths on the DWC Form-007?
The following employers are required to file the DWC Form-007:
• An employer that does not have workers’ compensation insurance coverage (non-subscriber)
and employs five or more employees who are not exempt from workers’ compensation
insurance coverage must file the DWC Form-007 to report all on-the-job injuries and occupational
diseases. Examples of exempt employees include certain domestic workers, and certain farm and
ranch workers.
• An employer that has workers’ compensation insurance coverage must file the DWC Form-007 to
report an on-the-job injury or occupational disease for an employee who has waived workers’
compensation insurance coverage in accordance with Texas Labor Code §406.034.
Failure to file the form may subject the employer to administrative penalties.
What do I do if I need to report more than two injured employees?
Copy page three of the form as many times as necessary for reporting additional injured employees.
When do I file the DWC Form-007?
The form must be filed not later than the 7th day of the month following the month in which:
• a work-related death occurred,
• an employee was absent from work for more than one day* as a result of an on-the-job injury; or
• the employer acquired knowledge of an occupational disease.
*Do not count the day of the injury or the day the injured employee returned to work when calculating the
number of days absent from work.
NOTE: If no such deaths, injuries, or diseases occurred during a calendar month, no report is required
for that month.
Are any fields on the DWC Form-007 optional?
No, all applicable fields must be completed each time the DWC Form-007 is filed.
How do I file the DWC Form-007?
Submit the DWC Form-007 to the Texas Department of Insurance, Division of Workers’ Compensation
(TDI-DWC) by:
• faxing the form to (512) 804-4146; or
• mailing the form to the address listed at the top of the form.
DWC007
DWC007 Rev. 01/13 Page 5 of 5
Instructions for Completing Specific Items
Box 5: Employer NAICS Codes*/Employment
List all six-digit NAICS Codes which the employer uses with the FEIN specified in Box 8. Provide the
highest employment figure for each NAICS Code for the month of the report. Employment means all
employees on your payroll whether full-time, part-time, temporary, or permanent. Attach additional
pages, if necessary.
Box 21: Employee NAICS Code*
List the six-digit NAICS Code of the activity that the employee was engaged in at the time of the injury or
disease. The code listed must be one of the six-digit NAICS Code numbers reported in Box 5.
Box 22: Race/Ethnic Identification
Check appropriate box and provide requested information, if applicable. Information as to the
race/ethnicity of the employee will be maintained for non-discriminatory statistical use.
NOTE: Hispanic, while not a race identification, is included as a separate race/ethnic category. Do not
include Hispanic under “white” or “black”.
Box 28: Reported Cause of Injury
Enter the most probable cause of the injury or disease. Examples: overexertion due to lifting or pushing,
caught between, slip, trip, fall.
Box 29: Nature of Injury/Occupational Disease
Enter the type of injury or occupational disease. Examples: cut, burn, bruise, fracture, sprain, strain,
chemical burn, dermatitis, asbestosis, silicosis. For multiple injuries, use most serious.
Box 33: Number of Days Absent from Work
• Occupational disease: Must be reported regardless of the number of days the employee is absent
from work. Check the appropriate box, including 1 Day or Less.
• On-the-job injury: Must be reported only if the employee is absent from work for more than one
day. Do not check 1 Day or Less.
Box 36: Description of Incident
Provide a short narrative of how the incident occurred. Example: While painting house, fell off ladder and
fractured arm.
*Information on NAICS Codes can be found on the United States Census Bureau website at
www.census.gov/eos/www/naics. NAICS Codes can also be obtained from the North American Industry
Classification System published by the National Technical Information Service, 5285 Port Royal Road,
Springfield, Virginia 22161; e-mail: info@ntis.fedworld.gov.

Notice to New Employees Rev. 01/13 DIVISION OF WORKERS’ COMPENSATION
Texas Department of Insurance
Division of Workers’ Compensation
7551 Metro Center Drive, Suite 100 • Austin, Texas 78744-1645
512-804-4000 telephone • 512-804-4001 fax • www.tdi.texas.gov
YOU MAY USE YOUR OWN LETTERHEAD WITH
THE FOLLOWING INFORMATION
Reference Rule 110.101
(a) In addition to the posted notice required by subsection (e) of this section, employers, as
defined by Labor Code Section 406.001, shall notify their employees of workers’
compensation insurance coverage status, in writing. This additional notice:
(1) shall be provided at the time an employee is hired, meaning when the employee is
required by federal law to complete both a W-4 form and an I-9 form or when a
break in service has occurred and the employee is required by federal law to
complete a W-4 form on the first day the employee reports back to duty;
(2) shall be provided to each employee, by an employer whose workers’
compensation insurance coverage is terminated or cancelled, not later than the 15th
day after the date on which the termination or cancellation of coverage takes
effect;
(3) shall be provided to each employee, by an employer who obtains workers’
compensation insurance coverage, not later than the 15th day after the date on
which coverage takes effect, as necessary to allow the employee to elect to retain
common law rights under Labor Code Chapter 406;
(4) shall include the text required in the posted notice (see rule 110.101 (e)(1), (e)(2),
(e)(3), (e)(4) for appropriate language); and
(5) if the employer is covered by workers’ compensation insurance (subscriber) or
becomes covered, whether by commercial insurance or through self-insurance as
provided by the Texas Workers’ Compensation Act (Act), shall include the
following statement:
NOTICE TO NEW EMPLOYEES
“You may elect to retain your common law right of action if, no later than five days
after you begin employment or within five days after receiving written notice from
the employer that the employer has obtained workers’ compensation insurance
coverage, you notify your employer in writing that you wish to retain your common
law right to recover damages for personal injury. If you elect to retain your
common law right of action, you cannot obtain workers’ compensation income or
medical benefits if you are injured.”
NOTICE TO EMPLOYEES CONCERNING
WORKERS’ COMPENSATION IN TEXAS
COVERAGE: [Name of employer] does not
have workers’ compensation insurance coverage. As an employee of a non-covered employer, you
are not eligible to receive workers’ compensation benefits under the Texas Workers’ Compensation
Act. However, a non-covered (non-subscribing) employer can and may provide other benefits to
injured employees. You should contact your employer regarding the availability of other benefits for
a work-related injury or occupational disease. In addition, you may have rights under the common
law of Texas should you have an on the job injury or occupational disease. Your employer is required
to provide you with coverage information, in writing, when you are hired or whenever the employer
becomes, or ceases to be, covered by workers’ compensation insurance.
SAFETY VIOLATIONS HOTLINE: The Division has a 24 hour toll-free telephone number
for reporting unsafe conditions in the workplace that may violate occupational health and safety
laws. Employers are prohibited by law from suspending, terminating, or discriminating against any
employee because he or she in good faith reports an alleged occupational health or safety violation.
Contact the Division at 1-800-452-9595.
Notice 5 (01/13) TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS’ COMPENSATION Rule 110.101(e)(4)
Non-Covered Employer
Texas Workers’ Compensation Rule 110.101(e)(4) requires employers who are not covered by
workers’ compensation, either by election, cancelation or termination of coverage to advise their
employees that they do not have workers’ compensation insurance coverage.
Notices in English, Spanish and any other language common to the employer’s employee population
must be posted and:
1. Prominently displayed in the employer’s personnel office, if any;
2. Located about the workplace in such a way that each employee is likely to see the notice on a
regular basis;
3. Printed with a title in at least 26 point bold type, subject in at least 18 point bold type, and text in
at least 16 point normal type; and
4. Contain the exact words as prescribed in Rule 110.101(e)(4).
The notice on the reverse side meets the above requirements. Failure to post or to provide notice
as required in the rule is a violation of the Act and Division rules. The violator may be subject to
administrative penalties.
Do Not Post This Side
COBERTURA: [Name of employer]
no cuenta con una cobertura de seguro
de compensación para trabajadores. Como empleado de un empleador que
no cuenta con una cobertura, usted no es elegible para recibir beneficios
de compensación para trabajadores bajo la Ley de Compensación para
Trabajadores de Texas. Sin embargo, un empleador no cubierto (no
suscriptor) puede y debe proporcionar otros beneficios a los empleados
lesionados. Usted debe comunicarse con su empleador para obtener
información sobre la disponibilidad de otros beneficios por una lesión o
enfermedad ocupacional relacionada con el trabajo. Además, usted podría
tener derechos bajo la ley de “Derecho Común de Texas” (Common Law of
Texas, por su nombre en inglés), en caso de que usted llegara a sufrir una
lesión o enfermedad ocupacional relacionada con el trabajo. Su empleador
tiene la obligación de proporcionarle a usted información por escrito sobre
la cobertura cuando usted es contratado o cuando su empleador adquiere o
deja de tener una cobertura de seguro de compensación para trabajadores.
LÍNEA DIRECTA PARA REPORTAR VIOLACIONES DE
SEGURIDAD: La División cuenta con una línea gratuita telefónica que
está en servicio las 24 horas del día para reportar condiciones inseguras
en el área de trabajo que podrían violar las leyes ocupacionales de salud
y seguridad. La ley prohíbe que los empleadores suspendan, despidan o
discriminen en contra de cualquier empleado porque él o ella de buena
fe reporta una alegada violación ocupacional de salud o seguridad.
Comuníquese con la División al teléfono 1-800-452-9595.
AVISO A LOS EMPLEADOS SOBRE
LA COMPENSACIÓN PARA
TRABAJADORES EN TEXAS
Notice 5 (01/13) TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS’ COMPENSATION Rule 110.101(e)(4)
EMPLEADORES SIN COBERTURA
El Reglamento 110.101 (e)(4) de Compensación para Trabajadores de
Texas requiere que los empleadores que no cuentan con una cobertura
de compensación para trabajadores, ya sea por elección, cancelación o
anulación de la cobertura notifiquen a sus empleados que no cuentan con
una cobertura de seguro de compensación para trabajadores.
Avisos en inglés, español y cualquier otro idioma común para la población
de los trabajadores del empleador deben ser puestos a la vista y:
1. Mostrarse en un lugar prominente de la oficina de personal del
empleador, si es que la hay;
2. Ubicar este aviso en el área de trabajo de tal manera que los
empleados lo vean regularmente;
3. El título debe ser impreso en tamaño 26, en letra negrita de punto, el
tema debe ser impreso en tamaño 18, en letra negrita de punto, y el
texto, por lo menos en tamaño 16 en letra negrita de punto normal; y
4. Contener las palabras exactas según lo señalado en el Reglamento
110.101 (e)(4).
El aviso que se muestra al reverso de esta página cumple con los
requisitos que se han señalado en la parte de arriba. El negarse a mostrar
o proporcionar esta información, según lo requerido en el reglamento es
una falta a la ley y a los reglamentos de la División. El infractor podría estar
sujeto a sanciones administrativas.
NO MOSTRAR ESTE LADO

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Medicare Set Aside Directive–Fort Worth, Texas Workers’ Compensation Defense Lawyers

JUL 23 2001
To: All Associate Regional Administrators
Attention: Division of Medicare
From: Deputy Director
Purchasing Policy Group
Center for Medicare Management
SUBJECT: Workers’ Compensation: Commutation of Future Benefits
Medicare’s regulations (42 CFR 411.46) and manuals (MIM” 3407.7&3407.8 and MCM
”2370.7 & 2370.8) make a distinction between lump sum settlements that are commutations of
future benefits and those that are due to a compromise between the Workers’ Compensation
(WC) carrier and the injured individual. This Regional Office letter clarifies the Centers for
Medicare & Medicaid Services (CMS) policy regarding a number of questions raised recently by
several Regional Offices (RO) concerning how the RO should evaluate and approve WC lump
sum settlements to help ensure that Medicare’s interests are properly considered.
Regional Office staff may choose to consult with the Regional Offices Office of the General
Counsel (OGC) on WC cases because these cases may entail many legal questions. OGC should
become involved in WC cases if there are legal issues which need to be evaluated or if there is a
request to compromise Medicare’s recovery claim or if the Federal Claims Collection Act
(FCCA) delegations require such consultation. Because most WC carriers typically dispute
liability in WC compromise cases, it is very common that Medicare later finds that it has already
made conditional payments. (A conditional payment means a Medicare payment for which
another payer is responsible.) If Medicare’s conditional payments are more than $100,000 and
the beneficiary also wishes Medicare to compromise its recovery under FCCA (31U.S.C.3711),
the case must be referred to Central Office and then forwarded to the Department of Justice. It is
important to note in all WC compromise cases that all pre-settlement and post-settlement
requests to compromise any Medicare recovery claim amounts must be submitted to the RO for
appropriate action. Regional Offices must comply with general CMS rules regarding collection of
debts (please reference the Administrator’s March 27, 2000 memo re: New instructions detailing
your responsibilities for monies owed to the government).

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]