- By Ben Wear American-Statesman Staff
Judith Zaffirini and her texting-while-driving ban began a fifth Sisyphean journey through the Texas Senate on Monday with approval from the State Affairs Committee. But despite that 6-3 vote, the boulder remains large and the incline steep for the Laredo Democrat’s longtime goal.
Senate Bill 31, criticized by some Republicans as difficult to enforce and an intrusion on adults’ private behavior, is likely to sail through the House, based on support there in past sessions and a unanimous House committee vote last week for an identical bill. But the Senate is a different story.
“Driving is a privilege, not a right, and it is the Texas Legislature’s duty to preserve Texans’ right to safety,” Zaffirini told the committee.
Voting against were state Sens. Brandon Creighton, R-Humble; Charles Schwertner, R-Georgetown; and Brian Birdwell, R-Granbury.
The bill would ban use of hand-held phones to “read, write or send an electronic message” in a moving car or truck statewide, something that is already against the law in more than 100 Texas cities and towns, and in all but four states. Advocates for such legislation argue that use of phones for messages, emails, photos and the internet, more than talking to others in the car or fiddling with dashboard controls, leads to sometimes deadly inattention to the road.
Zaffirini said her bill would not prevent use of a hand-held phone to talk while driving — unlike Austin’s ordinance and many other local laws in Texas. But she said that passing the bill even without that prohibition is difficult and that she at least wants to prohibit the most dangerous and distracting driving behavior.
“It is largely a deterrent,” Zaffirini said of her bill. “If people know something is against the law, most of them won’t do it.”
The statistical support of the prohibition remains a moving target, not least because of what law enforcement says is a tendency for drivers involved in accidents to lie about cellphone use.
‘No way to describe the pain’
House Bill 62, identical to Zaffirini’s bill, was approved 13-0 by a committee Friday and is expected to be passed by the full House as soon as this week.
Aaron Berry, 13, of Houston, was among several victims of wrecks involving phone use who testified Monday. His father and mother were killed, and he and his younger brother were paralyzed from the waist down in a head-on collision caused by a distracted driver on July 3, 2011. He was there in a wheelchair, as he has been in previous sessions and hearings, to tell his story.
“There is no way to describe the pain, and I just can’t understand why there is no law on it in the state of Texas,” Berry said. “Please don’t make us wait another day.”
The prohibition in SB 31 would not apply to law enforcement and emergency officials, or people using car radio transmitters, and the law would create a defense against prosecution if the driver sending a message from a hand-held phone “reasonably believed” that an emergency needed to be reported.
A first offense would carry a fine of $25 to $99. The fine for subsequent offenses would be $100 to $200, and the bill stipulates that a conviction would not result in points being assessed on the driver’s record.
The ‘freedom caucus’
Zaffirini has been trying to pass a phone ban each session since 2009, getting closest in 2011 — when former Gov. Rick Perry vetoed legislation that passed both chambers — and last session. The House approved a similar ban in 2015, and Zaffirini had 18 committed votes in the 31-member Senate. But she needed one more under Senate rules to bring the bill up for debate and never got it.
The Senate’s “freedom caucus” of libertarian-minded Republicans was the heart of the opposition in 2015, and that figures to be the case this time.
Changes in the Senate membership since 2015 have tilted against the texting bill. Former state Sen. Kevin Eltife, thought to be a supporter, has been replaced by Bryan Hughes, R-Tyler, a social conservative who has tended to vote with the freedom caucus. Hughes supported the bill Monday in committee, as a “courtesy,” Zaffirini later said, but she is still working to secure his vote on the Senate floor.
Zaffirini over the past sessions has managed to turn some “no” votes into support, she said, citing among others Lt. Gov. Dan Patrick and Republicans Joan Huffman of Houston and Jane Nelson of Flower Mound.
“I worried about too much government and government interference,” Huffman said. “But through the years, I watched people’s social behavior change. I can look around this room and see people texting. Our behavior has changed, and I think we have a moral obligation as senators to protect our constituents.”