New texting while driving ban full of loopholes

Law took effect Sept. 1

By Joel Eisenbaum - Investigative Reporter

HOUSTON - A new Texas law now in effect that bans texting while driving is full of loopholes, Channel 2 Investigates has learned.

The law took effect Sept. 1, during the height of Harvey.

"I think it is going to be very difficult to enforce," Jeff Seely, a personal injury attorney in Houston with Gordon, Elias & Seely, said.

Seely, who generally supports the new law, said that the legislation, a product of compromise, offers drivers a range of possible defenses and mandates that officers must not only witness offenders using their phones, but identify that the activity is specifically texting.

“It gives people (permission) to use their phones under certain circumstances,” Seely said.

Drivers are still permitted to make and receive phone calls, as long as local ordinance does not prohibit it.

Drivers are also allowed to use navigation and music applications. The law does not address the use of internet browsers, search functions, gaming or other phone applications.

However, the way the law is written, the use of messaging and communications applications like Facebook, Facebook Messenger and Twitter appear to be prohibited.

In some cases, the new state law replaces more stringent local texting while driving ordinances.

“I think for 99 percent of the circumstances, the law is very clear," Rep. Gene Wu, from Houston, said. "There’s always going to be an exception, there is always going to be a head scratcher."

Wu, a co-author of the bill, concedes that the law could have been tougher, but said certain compromises had to be made.

“Something is better than nothing,” Wu said.

Under the law, drivers who text during emergency situations are exempt from the law. However, the bill does not make clear what constitutes an emergency.

Workers sending and receiving dispatches via text or messaging apps to and from devices temporarily or fixed to a vehicle during the course of business are also exempt.

On the face of it, it would appear most workers communicating with offices would be exempt, as long as their phones are mounted.

“At the end of the day, we expect a jury or a judge to use good common sense and apply the law with the facts,” Wu said.

Persons licensed with the FCC while operating a radio frequency device other than a wireless communication device are exempt.

Hands-free texting is also allowed.

Operators of authorized emergency or law enforcement vehicles are exempt, as long as the operator is on duty.

“I think it’s a step forward, (but) I think it could have gone a lot further,” Seely said.

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