On the morning of October 19, 2017, Lisa Torry Smith was walking her 6-year-old son, Logan, to Jan Schiff Elementary School in Missouri City. That morning, a vehicle struck Lisa and Logan while they were in a crosswalk near the school. Lisa Torry Smith died as a result of her injuries. Logan survived the collision but suffered serious bodily injury. Lisa Torry Smith was only 37 years old at the time of her death.
The Fort Bend County Sheriff’s Office conducted a criminal investigation, discovering a video recording of the collision. The investigation revealed that the driver was turning left into the intersection when the driver collided with the two pedestrians. The driver was charged with criminally negligent homicide, but that charge was eventually no-billed by a grand jury.
Lisa Torry Smith’s family was devastated. Her family and other concerned citizens started an advocacy group called the Citizens for Road Safety “to ensure fundamental rights to freedom and life are protected on public roads.” 1 The group maintains that “Lisa’s pursuit of basic fundamental rights—the right to life, liberty and her dedication to raising her family—was taken away because of a reckless driving culture, allowed to go on without consequences.” 2
Pedestrian Deaths Are a National Epidemic
According to the National Highway Traffic Safety Administration, 6,283 pedestrians were killed in 2018 compared to 4,092 pedestrians in 2009. 3 The difference reflects a 53% increase over the same period. 4 In 2021 in Texas, 841 people died in pedestrian-related traffic crashes, an increase of 15% from 2020. 5 Author and transportation expert Angie Schmitt studied the trend and characterized it as an epidemic in America. 6 In her book on the subject, Right of Way: Race, Class, and the Silent Epidemic of Pedestrian Deaths in America, Schmitt declared that pedestrian deaths are preventable and attributed the epidemic to a number of factors, including wider roads, large fast vehicles, culture, and local policy including speed limits, zoning, and budgets.
“Vision Zero” is a strategy and movement recognized worldwide as a method “to eliminate all traffic fatalities and severe injuries, while increasing safe, healthy, equitable mobility for all.” 7 Vision Zero, first implemented in Sweden in the 1990s, has been successful across Europe and is gaining momentum in major American cities. 8
Criminal Responsibility Prior to the Act
The grand jury’s decision not to indict the driver was most likely attributable to the legal standard required to establish criminal negligence. The Texas Penal Code states criminally negligent homicide exists when “[a] person commits an offense if he causes the death of an individual by criminal negligence.” 9 The Texas Penal Code indicates, “a person acts with criminal negligence, or is criminally negligent, with respect to the circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that makes the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.” 10
The Texas Court of Criminal Appeals held in Queeman v. State 11 that speeding alone was insufficient to prove criminal negligence without evidence of excessive speed and the length of time the driver was inattentive. Thus, criminally negligent homicide, which is caused by driving, required facts in addition to speeding to establish deviation from the ordinary care standard. 12
Notifying the family of the grand jury’s decision was painful. It was the third time that I had a discussion with a family about the inability to pursue criminally negligent homicide charges regarding an automobile collision. At that time, I promised to help the family seek legal reform to address pedestrian deaths.
Passage of the LTS Act
In December 2020, I drafted proposed legislation that was sponsored by state Rep. Ron Reynolds and state Sen. Joan Huffman. The proposed legislation underwent several amendments, but Senate Bill 1055 passed both houses of the Legislature and was sent to Gov. Greg Abbott for signature on May 29, 2021. Abbott signed the law, titled The Lisa Torry Smith Act, on June 18, 2021.
The Lisa Torry Smith Act amended Section 544.007 of the Texas Transportation Code to require drivers to “stop and yield the right of way to pedestrians lawfully in the intersection or an adjacent crosswalk.” The previous version only required drivers to “yield the right of way to other vehicles and pedestrians.” Further, the act added Section 545.428, which indicates “a person commits an offense if the person with criminal negligence: (1) operates a motor vehicle within the area of a crosswalk; and (2) causes bodily injury to a pedestrian or a person operating a bicycle, motor-assisted scooter, electronic personal assistive mobility device, neighborhood electric vehicle, or golf cart.” Section 545.428 provides that the offense is a class A misdemeanor if the offense results in bodily injury and a state jail felony if the offense results in serious bodily injury. It also provides an affirmative defense for drivers if the pedestrian was violating the law regarding crosswalks or roadways at the time of the collision.
Preventing Deaths by New Duty to Stop and Yield
Motor vehicles, when operated in an unsafe manner, can be deadly weapons. The Lisa Torry Smith Act is specific to crosswalk areas and creates a “stop and yield” duty for vehicle operators when driving in those areas. Drivers who violate the law may be held criminally responsible, which could include a Class C misdemeanor traffic violation up to a state jail felony if the violation causes serious bodily injury. The Texas Department of Transportation has launched an awareness campaign about the stop and yield law as a part of its “Be Safe. Drive Smart.” program. 13 Regulatory signs that remind drivers of the new law and the duty to stop and yield for pedestrians in crosswalks are becoming common in high pedestrian areas like stores and airports. The act was designed to prevent pedestrian deaths and cause drivers to be more careful as they travel through intersections. Texas drivers would be wise to approach crosswalk areas with greater caution and remember to stop and yield to pedestrians. TBJ
NOTES
1. The Lisa Torry Smith Act is now law across Texas, Citizens for Road Safety, https://citizensroadsafety.org; see also Help us Get Justice for Lisa and other Victims of Houston Dangerous Roads (Oct. 19, 2018), https://justiceforlisa.org/2018/10/19/help-us-get-justice-for-lisa/.
2. Id.
3. Angie Schmitt, Right of Way: Race, Class, and the Silent Epidemic of Pedestrian Deaths in America (Island Press, 2020), citing Traffic Deaths Decreased in 2018, but Still 36,560 People Died, National Highway Traffic Safety Administration, https://www.nhtsa.gov/ traffic-deaths-decreased-2018-still-36560-people-died; see also 2019 Fatality Data Show Continued Annual Decline in Traffic Deaths, National Highway Traffic Safety Administration (Oct. 1, 2020), https://www.nhtsa.gov/press-releases/2019-fatality-data-show-continued-annual-decline-traffic-deaths; see also Traffic Safety Facts 2009, National Highway Traffic Safety Administration, https://crashstats.nhtsa.dot.gov/ Api/Public/ViewPublication/811402.
4. Id.
5. Pedestrian Safety Campaign, Texas Department of Transportation, https://www.txdot.gov/ content/txdotreimagine/us/en/home/safety/traffic-safety-campaigns/pedestrian-safety.html.
6. Angie Schmitt, Right of Way: Race, Class, and the Silent Epidemic of Pedestrian Deaths in America (Island Press, 2020).
7. What is Vision Zero?, Vision Zero Network, https://visionzeronetwork.org/about/what-is-vision-zero/.
8. Id.
9. Tex. Penal Code Ann. §19.05.
10. Tex. Penal Code Ann. §6.03(d).
11. 510 S.W.3d 616, 630 (Tex. Crim. App. 2017).
12. See Harber v. State, 594 S.W.3d 438, 448-449 (Tex. App.—San Antonio, 2019 pet ref’d).
13. Drivers, pedestrians, bicyclists must follow traffic laws and stay focused, Texas Department of Transportation, https://www.txdot.gov/content/txdotreimagine/us/en/home/about/ newsroom/statewide/drivers-pedestrians-bicyclists-must-follow-traffic-laws-and-stay-focused.html; see also Pedestrian Safety Campaign, Texas Department of Transportation, https://www.txdot.gov/safety/traffic-safety-campaigns/pedestrian-safety.html; see also Hannah Trippett, TxDOT launches fall campaign on 1st anniversary of Lisa Torry Smith Act, KIAH Houston (Sept. 2, 2022), https://cw39.com/news/txdot-launches-fall-campaign-on-1st-anniversary-of-lisa-torry-smith-act/.
BRIAN MIDDLETON graduated from the University of Houston, class of 1994, and Thurgood Marshall School of Law, class of 1997. He is the son of attorney Bernard Middleton, married to Coretta Middleton, and has three daughters. Middleton was elected as the district attorney for Fort Bend County in 2018 and is unopposed in the 2022 election.
