As insurance defense attorneys in Texas, we have been asked by insurance companies to defend lawsuits on a number of occasions that have involved allegations against the insured driver that cell phone use while driving contributed to or was a proximate cause of a motor vehicle accident.
It is well known that Texas has no statewide law that bans the use of cell phones while driving. However, many local areas prohibit or limit the use of cell phones while driving. Also, Texas law prohibits the use of cell phones while driving if a person has had a learner’s permit for six months or less; if he or she is under 18 years old; or if he or she operates a school bus when children are present; and if the driver is in a school crossing zone.
As the proud owner of a teenage driver myself, I am glad that there are restrictions on his ability to use a wireless communication device at all while driving. At least the law is trying to do the right thing.
Some of the various jurisdictions in Texas that may have further restrictions on cell phone use while driving include the following: Arlington, Austin, Bellaire, Brownsville, Conroe, El Paso, Galveston, Harlingen, Houston, Magnolia, McAllen, Mission, Missouri City, Mount Vernon, Nacogdoches, San Antonio, Stephenville, Tomball and Universal City. This is far from an exhaustive list, and the trend is towards more regulation rather than less.
Nearly 25% of all motor vehicle accidents likely involve driver distraction. It is often argued by Plaintiff’s lawyers who we handle cases against that drivers who use cell phones in their vehicles have a higher risk of collision than drivers who don’t, whether holding the phone or using a hands-free device. Sometimes expert witnesses are brought into lawsuits to debate the use of cell phones as a causative factor to the accident.
Chapter 545 of The Texas Transportation Code is the key statutory guidance as far as state regulation of cell phone usage on the rods of Texas. Section 545.425 reads as follows:
Sec. 545.425. USE OF WIRELESS COMMUNICATION DEVICE; 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.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation lawyers in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
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