By: Craddick, et al. (Senate Sponsor - Zaffirini) H.B. No. 62
(In the Senate - Received from the House March 20, 2017;
May 9, 2017, read first time and referred to Committee on State
Affairs; May 17, 2017, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 5, Nays 1;
May 17, 2017, sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR H.B. No. 62 By: Zaffirini
A BILL TO BE ENTITLED
AN ACT
relating to the use of a wireless communication device while
operating a motor vehicle; creating a criminal offense; modifying
existing criminal penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. This Act may be cited as the Alex Brown Memorial
Act.
SECTION 2. Sections 521.161(b) and (c), Transportation
Code, are amended to read as follows:
(b) The examination must include:
(1) a test of the applicant's:
(A) vision;
(B) ability to identify and understand highway
signs in English that regulate, warn, or direct traffic;
(C) knowledge of the traffic laws of this state;
[and]
(D) knowledge of motorists' rights and
responsibilities in relation to bicyclists; and
(E) knowledge of the effect of using a wireless
communication device, or engaging in other actions that may
distract a driver, on the safe or effective operation of a motor
vehicle;
(2) a demonstration of the applicant's ability to
exercise ordinary and reasonable control in the operation of a
motor vehicle of the type that the applicant will be licensed to
operate; and
(3) any additional examination the department finds
necessary to determine the applicant's fitness to operate a motor
vehicle safely.
(c) The department shall give each applicant the option of
taking the parts of the examination under Subsections (b)(1)(B),
(C), [and] (D), and (E) in writing in addition to or instead of
through a mechanical, electronic, or other testing method. If the
applicant takes that part of the examination in writing in addition
to another testing method, the applicant is considered to have
passed that part of the examination if the applicant passes either
version of the examination. The department shall inform each
person taking the examination of the person's rights under this
subsection.
SECTION 3. Section 543.004(a), Transportation Code, is
amended to read as follows:
(a) An officer shall issue a written notice to appear if:
(1) the offense charged is:
(A) speeding;
(B) the use of a wireless communication device
under Section 545.4251; or
(C) a violation of the open container law,
Section 49.031 [49.03], Penal Code; and
(2) the person makes a written promise to appear in
court as provided by Section 543.005.
SECTION 4. Section 545.424, Transportation Code, is amended
by amending Subsections (a), (b), and (c) and adding Subsection (g)
to read as follows:
(a) A person under 18 years of age may not operate a motor
vehicle while using a wireless communication [communications]
device, except in case of emergency. This subsection does not apply
to a person licensed by the Federal Communications Commission while
operating a radio frequency device other than a wireless
communication device.
(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 communication [communications]
device, except in case of emergency. This subsection does not apply
to a person licensed by the Federal Communications Commission while
operating a radio frequency device other than a wireless
communication device.
(c) Subsection (a-1) [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].
(g) An offense under Subsection (a) or (b) is a misdemeanor
punishable by a fine of at least $25 and not more than $99 unless it
is shown on the trial of the offense that the defendant has been
previously convicted at least one time of an offense under either
subsection, in which event the offense is punishable by a fine of at
least $100 and not more than $200.
SECTION 5. The heading to Section 545.425, Transportation
Code, is amended to read as follows:
Sec. 545.425. USE OF WIRELESS COMMUNICATION DEVICE IN A
SCHOOL CROSSING ZONE OR WHILE OPERATING A SCHOOL BUS WITH A MINOR
PASSENGER; POLITICAL SUBDIVISION SIGN REQUIREMENTS; OFFENSE.
SECTION 6. Section 545.425(a)(1), Transportation Code, is
amended to read as follows:
(1) "Hands-free device" means speakerphone
capability, [or] a telephone attachment, or another function or
other piece of equipment, regardless of whether permanently
installed in or on a wireless communication device or in a [the]
motor vehicle, that allows use of the wireless communication device
without use of either of the operator's hands, except to activate or
deactivate a function of the wireless communication device or
hands-free device. The term includes voice-operated technology and
a push-to-talk function.
SECTION 7. Section 545.425(b-2), Transportation Code, is
amended to read as follows:
(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,
including a prohibition that contains an exception for the use of a
wireless communication device with a hands-free device, throughout
the jurisdiction of the political subdivision is not required to
post a sign as required by Subsection (b-1) and shall [if the
political subdivision]:
(1) post [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 whether use of a wireless
communication device with a hands-free device is allowed 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, post
[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.
SECTION 8. Subchapter I, Chapter 545, Transportation Code,
is amended by adding Section 545.4251 to read as follows:
Sec. 545.4251. USE OF PORTABLE WIRELESS COMMUNICATION
DEVICE FOR ELECTRONIC MESSAGING; OFFENSE. (a) In this section:
(1) "Electronic message" means data that is read from
or entered into a wireless communication device for the purpose of
communicating with another person.
(2) "Wireless communication device" has the meaning
assigned by Section 545.425.
(b) An operator commits an offense if the operator uses a
portable wireless communication device to read, write, or send an
electronic message while operating a motor vehicle unless the
vehicle is stopped. To be prosecuted, the behavior must be
committed in the presence of or within the view of a peace officer
or established by other evidence.
(c) It is an affirmative defense to prosecution of an
offense under this section that the operator used a portable
wireless communication device:
(1) in conjunction with a hands-free device, as
defined by Section 545.425;
(2) to navigate using a global positioning system or
navigation system;
(3) to report illegal activity, summon emergency help,
or enter information into a software application that provides
information relating to traffic and road conditions to users of the
application;
(4) to read an electronic message that the person
reasonably believed concerned an emergency;
(5) that was permanently or temporarily affixed to the
vehicle to relay information in the course of the operator's
occupational duties between the operator and:
(A) a dispatcher; or
(B) a digital network or software application
service; or
(6) to activate a function that plays music.
(d) Subsection (b) does not apply to:
(1) an operator of an authorized emergency or law
enforcement vehicle using a portable 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 portable wireless communication device.
(e) An offense under this section is a misdemeanor
punishable by a fine of at least $25 and not more than $99 unless it
is shown on the trial of the offense that the defendant has been
previously convicted at least one time of an offense under this
section, in which event the offense is punishable by a fine of at
least $100 and not more than $200.
(f) Notwithstanding Subsection (e), an offense under this
section is a Class A misdemeanor punishable by a fine not to exceed
$4,000 and confinement in jail for a term not to exceed one year if
it is shown on the trial of the offense that the defendant caused
the death or serious bodily injury of another person.
(g) If conduct constituting an offense under this section
also constitutes an offense under any other law, the person may be
prosecuted under this section, the other law, or both.
(h) The Texas Department of Transportation shall post a sign
at each point at which an interstate highway or United States
highway enters this state that informs an operator that:
(1) the use of a portable wireless communication
device for electronic messaging while operating a motor vehicle is
prohibited in this state; and
(2) the operator is subject to a fine if the operator
uses a portable wireless communication device for electronic
messaging while operating a motor vehicle in this state.
(i) A peace officer who stops a motor vehicle for an alleged
violation of this section may not take possession of or otherwise
inspect a portable wireless communication device in the possession
of the operator unless authorized by the Code of Criminal
Procedure, the Penal Code, or other law.
(j) This section preempts all local ordinances, rules, or
other regulations adopted by a political subdivision relating to
the use of a portable wireless communication device by the operator
of a motor vehicle to read, write, or send an electronic message.
SECTION 9. Section 708.052, Transportation Code, is amended
by adding Subsection (e-1) to read as follows:
(e-1) Notwithstanding Subsection (b), the department may
not assign points to a person's license if the offense of which the
person was convicted is the offense of using a portable wireless
communication device for electronic messaging as described by
Section 545.4251.
SECTION 10. The changes in law made by this Act to Section
543.004 and Chapter 545, Transportation Code, apply only to an
offense committed on or after the effective date of this Act. An
offense committed before the effective date of this Act is governed
by the law in effect on the date the offense was committed, and the
former law is continued in effect for that purpose. For purposes of
this section, an offense was committed before the effective date of
this Act if any element of the offense occurred before that date.
SECTION 11. This Act takes effect September 1, 2017.
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