Just Because Police Rarely Enforce Texas’ Texting Ban Doesn’t Mean it Doesn’t Have an Impact

By Jeffrey CarrJuly 08, 2021Reading Time: 4 minutes

Recently, the Dallas Morning News measured the enforcement of the texting while driving ban in Texas. The initial ban went into effect in September of 2017, in the wake of a horrific mass-casualty crash outside of San Antonio. In that incident, a young man was allegedly texting, when he crashed into a church bus, killing 13 people.

The results of the Morning News story won't surprise anyone who drives even a few miles on our highways. If the goal of the texting ban is to reduce people using their phones behind the wheel, then its impact is next to nonexistent. The citation numbers bear this out. However, citations aren't the only way to measure the law's impact.

The Texas Texting Ban: Catching 3/4ths of a North Texas Driver a Day Since 2017*

Since the texting ban took effect, in September 2017 through 2020, roughly 1200 days passed. During that time, police in Arlington, Dallas, Frisco, Fort Worth, Grand Prairie, McKinney, Plano, and Richardson issued a grand total of 839 citations for texting while driving. That's a smidge over 0.75 drivers a day. Even that number overestimates the ban's effects.

For the jurisdictions that separated citations issued under the new ban from those issued for texting in a school zone (a practice outlawed years earlier), authorities issued the vast majority of cell phone violation citations in school zones.* It makes sense that school zone traffic infractions would be higher, since they're a larger enforcement priority.

Given the rise in crime in the area, coupled with staffing shortage in many departments, it's understandable that catching cell phone use behind the wheel would not be a particularly high priority. However, the disconnect between the cell phone use behind the wheel, which anyone can see and the number of citations issued, might leave some feeling like their wasn't much point in changing the law.

Despite the lack of enforcement, the cell phone ban does have an impact, just not where people expect to see it.

Even Rarely Enforced Laws Can Help Injured Accident Victims

I spoke with award-winning truck accident attorney Michael Grossman to find out a bit more about how a rarely enforced law can still have an impact. He revealed some of the legal mechanisms that still give teeth to laws, even when the police aren't issuing many citations. What follows is an overview of what I learned from our conversation.

First, it's important to understand personal injury law rests on the assumption that when someone does a careless thing that hurts another person, the careless person is responsible for the damage they cause. That sounds simple, but as you can imagine when attorneys get involved, defining whether or not an act is careless becomes harder than most of us would expect it to be.

Most people assume that even prior to Texas passing a law prohibiting non-hands free cell phone use in cars, if someone was texting when they caused an accident, it was an open and shut case that they were responsible for the crash. Unfortunately, that was never true. An attorney for the injured person had to go in front of a jury and argue that cell phone use and driving was in fact careless or, negligent behavior.

It was then up to a jury to apply their judgment and determine whether cell phone use while driving is negligent. While the vast majority of people know that cell phone use and driving is dangerous, juries are a random sampling of the general public, which means that at every trial there was a risk that some juries just weren't going to see it as a negligent act.

According to Mr. Grossman, this meant that victim's attorneys had to consider the possibility that they would lose at trial, simply because a couple of jurors didn't believe that using cell phones behind that wheel was dangerous. As a consequence, defense attorneys for insurance companies were able to price that uncertainty into their offers. Predictably, this meant that in many cases, victims had to forego getting full compensation for their injuries, in order to avoid the risk that a jury would have a few holdouts who still believe that it's perfectly safe to use phones while driving.

How Does a Texting Ban Help Victims?

The texting ban helps victims in 2 immediate ways. First, when something is against the law, it's much harder for holdouts to argue that it isn't dangerous. More importantly, when there is a law against the type of behavior that causes a crash, courts allow attorneys to argue their case a little differently.

With the permission of the court, a victim's attorney can ask the court to frame the jury charge a different way. Instead of asking if the offending driver engaged in careless behavior, the victim's attorney can ask a jury did the at-fault driver engage in the banned behavior? This may seem like a subtle distinction, but it provides less wiggle-room for rogue jurors to derail the process. Instead of relying on their judgement for whether or not a behavior is dangerous, the juror only determines whether or not the prohibited behavior took place.

This benefit doesn't just accrue to accident victims. For example, the combined effects of Texas' ban and bans in other states led to a change in behavior among commercial drivers. While they certainly aren't responsible for the vast majority of accidents involved cell phone use, commercial vehicle crashes contribute to a disproportionate number of catastrophic crashes, due to the size of commercial trucks. The clear line that texting bans draw changed the safety procedures for many large trucking companies. In fact, most of the bigger carriers not only banned drivers from using cell phones while driving, they installed in-cab video monitoring to make sure that drivers followed the new rules.

Just Because Citations Aren't Issued Doesn't Mean the Texting Ban Doesn't Have an Impact

Many people misunderstand how laws work. They incorrectly assume that once a law passes, the undesirable behavior its meant to combat immediately ceases. With a problem as pervasive as texting and driving, there's no magic bullet to change people's behavior overnight.

Given the enforcement history in other states and the other issues that police contend with, it's hardly surprising that the number of cell phone use citations is so low. Certainly, this frustrates people who, whenever they're on the road, must dodge oblivious drivers on cell phones. But solving the larger problem will take a sea change in culture, just like we witnessed with drunk driving, which over several decades went from not being a big deal to socially unacceptable behavior.

Until that change in thinking happens, hundreds of people will continue to die annually in distracted driving crashes in Texas. While it's certainly not perfect, the texting ban does allow victims and their families to more easily hold distracted drivers accountable for the damage they inflict.