A woman holds a coffee cup and notebook on her steering wheel while talking on the phone


Jose Orihuela Sept. 27, 2021

The Texas Department of Transportation (TxDOT) lists distracted driving as the second leading cause of traffic crashes in the state. The department reports that in 2020, one in every five crashes was due to distracted driving, resulting in 2,200 serious injuries and 364 fatalities.

If you or a loved one has suffered injuries or other damages by a driver you suspect was distracted, contact me, Jose Orihuela, Attorney at Law, if you’re in the Houston, South Houston, and Pasadena areas of Texas, including neighboring communities like Friendswood, Dickinson, Seabrook, and Webster. I will listen to your story, investigate, weigh your options for the best possible outcome, and guide you accordingly.


The official definition of distracted driving in Texas is “any activity that takes your attention away from driving.” Since 2017, the focus of enforcing distracted driving laws has been on cell phone use. Using a cell phone to text, message, or email while operating your vehicle is specifically prohibited.

While other forms of distracted driving may lead to accidents on the roads, most are not illegal in and of themselves. The top causes of distracted driving are:

  • Eating, drinking, and smoking

  • Combing your hair or changing your clothes

  • Reaching for something in the car

  • Paying too much attention to your GPS or radio adjustments

  • Interacting with passengers

  • Tending to your pet while driving

  • Daydreaming

  • Taking your eyes off the road to view billboards, other traffic accidents, or something that catches your eye and diverts attention

More than 60 cities in Texas have enacted handheld electronic device laws. These municipalities have signs announcing their law when entering city limits.


Texas uses what is called primary enforcement of the texting ban, as opposed to secondary enforcement. Primary enforcement means officers can pull you over, even if you’re not breaking any law, to cite you for distracted driving. Secondary enforcement, used in some other states, means you have to be observed breaking a law (speeding, for instance) and texting before you can be cited for distracted driving or cell phone use.

In Texas, a first texting offense will lead to a fine of $25 to $99. For second and subsequent offenses, the penalty ranges from $100 to $200. No points are assessed to your driving record, so your insurance rates will probably not be affected unless you’re also cited for other violations or you’re involved in a traffic accident.


The Texas prohibition against cell phone use, or the use of any “wireless communication device,” makes exceptions if you stop your vehicle entirely. You are then allowed to send texts. For instance, if you’re stopped at a red light, you can quickly check your messages, but when the light changes and you start driving again, the phone must disappear from your possession. The best bet is to pull into a parking lot or the side of a highway, stop completely, and then complete your handheld device usage.

Texas law provides a few other exceptions to its prohibition of handheld device use while driving. For instance, texting is permitted when using hands-free, voice-to-text technology. Drivers may also use their hands to activate a function on their cell phone to play music.

Also, drivers under 18 or at any age with a learner’s permit are allowed to use wireless devices to make emergency calls.


If you’re struck by another vehicle whose driver you suspect was distracted, that can be used to show that the other driver breached his or her “duty of care” not to cause harm to anyone on the road. Showing distracted driving will provide further proof that the driver was negligent, and negligence is the cornerstone of prevailing in a personal injury lawsuit or seeking a settlement from an insurance company.

Texas is not a “no fault” state but a tort state, meaning you can pursue a claim or lawsuit against the other driver without going through your own insurance. Texas, however, also allows the benefits of “no fault” by allowing vehicle operators to purchase Personal Injury Protection (PIP) coverage. If you have PIP, you can get compensated quickly for your injuries and medical expenses by your own insurer before seeking a third-party claim.

If you lack PIP, you will have to file a claim against the other driver’s insurance, or file a personal injury lawsuit, or both, and then wait for negligence and fault to be assigned before you’re compensated. You could be facing out-of-pocket expenses for quite some time while the claims or court process take place.

In Texas, you have two years from the date of an accident to file a personal injury lawsuit, but any claims against insurers must be made almost immediately.


As noted above, negligence is the cornerstone of any liability claim. You need to show that the other driver caused your injuries due to negligence. However, negligence is a two-edged sword. Insurance adjusters and courts of law rely on what is called the principle of “modified comparative negligence.” Under this standard, both you and the other driver will be assigned a portion of the fault, or negligence.

When it comes time for your settlement to be finalized, or for a jury to award compensation, your reward will be reduced by your percentage of fault. Also, under modified comparative negligence, if your percentage of fault rises above 50 percent, you cannot claim or receive any compensation.


You really don’t want to go it alone if you’re pursuing a personal injury claim. The insurance adjusters will do everything to protect their parent company’s bottom line. They’ll try to get you to say something they can use to pin the fault on you so they can lowball or even deny your claim. 

Let an experienced attorney like myself deal with the adjusters. You’ll be happy you did because the adjusters will invariably offer you the lowest settlement figure possible on their first try. If you accept it, you can’t go back for more even if your injuries worsen or reappear. I will strive to negotiate for the strongest settlement possible.

If you’re in the Houston, South Houston, Pasadena, and Galveston areas, or in nearby communities, contact me for a free consultation. We’ll work together to seek the fair and just compensation you deserve.