Can You Talk on Your Cell Phone While Driving in Texas?

May 5, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Yes, unless you are under 18 years old or are within 6 months of getting your driver’s license, or in a school zone.

Between 90 and 100 cities and municipalities have their own restrictions too which would tighten the law even more.

Here’s What Is Illegal

It’s illegal to “send or receive electronic messages” while driving — so that would include texting while driving, social media, or any way of transmitting a message to another person.

What Type of Crime is it to Text and Drive?

Normally it’s just a traffic offense.  But if the driving is bad enough, it could be charged as reckless driving.  If someone is hurt or injured, it could be prosecuted as an assaultive offense.  If it causes death, it could be prosecuted as criminally negligent homicide or manslaughter.

Our office doesn’t handle simple traffic offenses — but we do handle more severe distracted driving charges.  You can read here about those.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He was designated as a Texas Super Lawyer by Martindale-Hubbell in 2019.


Vehicular Homicide – Defending Through Technology

April 23, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Technology is our friend in defending a distracted driving death case.

Why is technology our friend?  Because more often than not, it provides us with a 360-degree view of what was going on in everyone’s mind and car at the time of the accident.  Law enforcement and prosecution, on the other hand, tend to see one nugget of technological information.  When they do, they jump to conclusions and blind themselves to anything else.

An Example of Using Technology to Tell the Full Story:

Let’s say Driver 1 and Driver 2 collide causing the death of Driver 2 — and Driver 1 is on trial for Vehicular Manslaughter.

Let’s assume police are able to lawfully get into Driver 1’s phone (a big assumption).  Driver 1 was shown to have sent 3 texts in the 5 minutes before the crash with one text received 15 seconds before the accident.

Police then jump up and down hollering this is conclusive Driver 1 was distracted and caused the death of Driver 2.

But we’re capable knowing a much fuller story than just this.

We can tell based on the car’s infotainment system virtually anything being communicated to Driver 1 from the car.  Was there a hands-free system being used at the time through bluetooth or through a USB cable? Did the car have lane-assist and if so, was the driver in his/her lane?  Did the driver brake and/or moderate their speed?

Many of these things are knowable from both cars in the accident.


Car “Infotainment” systems can be key evidence in manslaughter and criminally negligent homicide cases.

Investigation and Privilege in Defending Vehicular Death Charges

A common fear is, “what if we dig into the technology and the truth actually hurts us?”

It’s a good question – but remember – your lawyer’s investigation is privileged.  If the investigation unearths bad or harmful information, then the information doesn’t boomerang and hurt the defense.  The public policy behind this is simple — Defense lawyers and defense investigators would never really dig into the truth if they were always afraid of what they might uncover.


The cornerstone to any good distracted driving homicide case whether it be criminally negligent homicide or manslaughter is being fluid with the technology surrounding the entire case.  The more information, typically the better.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He was designated as a Super Lawyer in 2019 by Thomson Reuters.


Vehicular Homicide – Manslaughter

April 21, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Manslaughter is governed by Tex.Pen.C. 19.04(a) which says, “A person commits an offense if he recklessly causes the death of an individual.”

It’s easy to over-simplify, but let’s break this down.

Here’s what the law says about how a person “recklessly” causes the death of another

–There is a substantial and unjustifiable risk that his conduct will cause that death;

–The risk is of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exer- cise under all the circumstances as viewed from the person’s standpoint; and

–The person is aware of but consciously disregards that risk.

Here’s what the law says about how someone “causes” the death of an individual:

–The conduct of Defendant was clearly sufficient to cause the death of the person; and/or

–Any and all other concurrent causes were clearly insufficient, by themselves, to cause the death of the person.

Analyzing “Recklessly”

The word “recklessly” is the lynchpin of vehicular manslaughter cases.  In essence, it means someone knew about the risk, yet made the conscious decision to ignore the risk.  Does texting while driving, eating while driving, or some other form of distracted driving rise to this level?  It’s in the eye of the beholder — a subjective case by case determination which is the terrifying grey area where these cases live for those accused of vehicular manslaughter.

Analyzing Causation

Law students are taught causation is extremely complex very early in their first year in tort law.

The test in vehicular homicide cases in Texas is essentially two-fold.  “But for” the defendant’s acts, the death would not have occurred is only part of the test.  What happens when the other driver either causes the accident or — even more confusingly — makes lesser mistakes which largely contribute to their own death?

For example:  Driver 1 is texting while driving incessantly and drifts into driver 2’s lane of traffic forcing driver 2 into a barrier.  Driver 2 is impaired and due to their impairment can’t react quickly enough to save their own lives.

Driver 2’s impairment is what is known as a “concurrent cause.”  So we know “but for” driver 1’s texting and drifting into the other lane — Driver 2 would be alive.  The question then is whether driver 2’s impairment was insufficient on its own to cause their own death.

My example is pretty simplified — but my guess is even then a jury could chew on this question for some time and come up with different opinions.

Summation on Vehicular Manslaughter

There’s no such thing as a simple case of manslaughter when it comes to texting while driving or distracted driving.  Each is highly technical both legally and emotionally.  I hope this article helps it make sense.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and was designated as a Super Lawyer by Thomson Reuters in 2019.