Texas Penal Code 42.03 – Obstructing Highway or Other Passageway

WHAT IS OBSTRUCTING HIGHWAY OR OTHER PASSAGEWAY IN TEXAS?

The Texas law against obstructing a highway or other passageway prohibits intentionally, knowingly, or recklessly making any place used for the passage of persons, vehicles, or conveyances impassable, or rendering passage unreasonably hazardous.

WHAT IS THE OBSTRUCTING HIGHWAY OR OTHER PASSAGEWAY LAW IN TEXAS?

Tex. Penal Code § 42.03. OBSTRUCTING HIGHWAY OR OTHER PASSAGEWAY.

(a) A person commits an offense if, without legal privilege or authority, he intentionally, knowingly, or recklessly:

(1) obstructs a highway, street, sidewalk, railway, waterway, elevator, aisle, hallway, entrance, or exit to which the public or a substantial group of the public has access, or any other place used for the passage of persons, vehicles, or conveyances, regardless of the means of creating the obstruction and whether the obstruction arises from his acts alone or from his acts and the acts of others; or

(2) disobeys a reasonable request or order to move issued by a person the actor knows to be or is informed is a peace officer, a fireman, or a person with authority to control the use of the premises:

(A) to prevent obstruction of a highway or any of those areas mentioned in Subdivision (1); or

(B) to maintain public safety by dispersing those gathered in dangerous proximity to a fire, riot, or other hazard.

<Text of (c), as amended by Acts 2021, 87th Leg., ch. 197 (H.B. 9), § 2>

(c) An offense under this section is a Class B misdemeanor, except that the offense is a state jail felony if, in committing the offense, the actor knowingly:

(1) prevents the passage of an authorized emergency vehicle that is operating the vehicle’s emergency audible or visual signals required by Section 546.003, Transportation Code; or

(2) obstructs access to a hospital licensed under Chapter 241, Health and Safety Code, or other health care facility that provides emergency medical care.

<Text of (c), as amended by Acts 2021, 87th Leg., ch. 949 (S.B. 1495), § 1>

(c) Except as otherwise provided by Subsections (d) and (e), an offense under this section is a Class B misdemeanor.

(d) Subject to Subsection (e), an offense under this section is a Class A misdemeanor if it is shown on the trial of the offense that, at the time of the offense, the person was operating a motor vehicle while engaging in a reckless driving exhibition.

(e) An offense under this section is a state jail felony if it is shown on the trial of the offense that, at the time of the offense, the person was operating a motor vehicle while engaging in a reckless driving exhibition, and:

(1) the person has previously been convicted of an offense punishable under Subsection (d);

(2) at the time of the offense, the person was operating a motor vehicle while intoxicated; or

(3) a person suffered bodily injury as a result of the offense.

Tex. Penal Code § 42.04. DEFENSE WHEN CONDUCT CONSISTS OF SPEECH OR OTHER EXPRESSION.

(a) If conduct that would otherwise violate Section 42.01(a)(5) (Unreasonable Noise), 42.03 (Obstructing Passageway), or 42.055 (Funeral Service Disruptions) consists of speech or other communication, of gathering with others to hear or observe such speech or communication, or of gathering with others to picket or otherwise express in a nonviolent manner a position on social, economic, political, or religious questions, the actor must be ordered to move, disperse, or otherwise remedy the violation prior to his arrest if he has not yet intentionally harmed the interests of others which those sections seek to protect.

(b) The order required by this section may be given by a peace officer, a fireman, a person with authority to control the use of the premises, or any person directly affected by the violation.

(c) It is a defense to prosecution under Section 42.01(a)(5), 42.03, or 42.055:

(1) that in circumstances in which this section requires an order no order was given;

(2) that an order, if given, was manifestly unreasonable in scope; or

(3) that an order, if given, was promptly obeyed.

WHAT IS THE PENALTY CLASS FOR OBSTRUCTING HIGHWAY OR OTHER PASSAGEWAY IN TEXAS?

Obstructing a highway or other passageway, without any of the enumerated aggravating factors, is a Class B misdemeanor, punishable by up to 180 days in county jail. It becomes a higher offense under certain circumstances:

• Class A misdemeanor, punishable by up to one year in jail, if the person was engaged in a “reckless driving exhibition,” i.e., blocking the roadway for sideshows, burnouts, wheelspins, or takeovers.
• State jail felony, punishable by 180 days to two years in a state jail facility, if the person:
  • knowingly obstructs access to a hospital or other emergency health care facility;
  • knowingly prevents the passing of an ambulance, firetruck, or other emergency vehicle with activated lights and sirens; or
  • was engaged in a reckless driving exhibition, and:
    • has a previous conviction for obstructing a highway while engaged in a reckless driving exhibition; or
    • was driving while intoxicated; or
    • someone was injured as a result of the offense.

WHAT IS THE PUNISHMENT RANGE FOR OBSTRUCTING HIGHWAY OR OTHER PASSAGEWAY IN TEXAS?

The punishment range for obstructing a highway or other passageway charged as a Class B misdemeanor is up to 180 days in jail, and a maximum $2,000 fine. If charged as a Class A misdemeanor, it carries up to one year in jail, and a maximum $4,000 fine. A person charged with a state jail felony faces between 180 days and two years in a state jail facility, and a maximum $10,000 fine.

WHAT ARE THE PENALTIES FOR OBSTRUCTING HIGHWAY OR OTHER PASSAGEWAY IN TEXAS?

A person charged with obstructing a highway or passageway may be eligible for probation after a conviction, or deferred adjudication without a conviction. The community supervision term for Class A or Class B misdemeanor obstruction may not exceed two years.

The community supervision period for a state jail felony is between two and five years, with the possibility of extending supervision for up to ten years. Texas Code of Criminal Procedure article 42A.517 requires at least ten days in jail as a condition of state-jail community supervision.

WHAT ARE THE DEFENSES TO OBSTRUCTING HIGHWAY OR OTHER PASSAGEWAY IN TEXAS?

The law that requires a warning prior to arrest for disorderly conduct consisting solely of speech or other communication also applies to obstructing a highway or passageway. If the obstruction is, for example, a nonviolent protest, police must first tell protestors to clear a passageway. A person arrested for obstruction may defend himself or herself by arguing that a warning was required, and either none was given, or the warning given was obeyed or unreasonable.

• Is obstructing a highway or passageway a lesser-included offense of driving while intoxicated? Obstructing a highway is not a lesser-included of DWI, but is used in some Texas counties as an alternative charge and plea-bargain offer to driving while intoxicated. A conviction or deferred adjudication for obstructing a highway may carry the same punishment range and probation or deferred conditions, but does not expose the person to the potential collateral consequences of a DWI conviction.

• What if a person does not actually prevent people or cars from passing? A person need not actually obstruct a highway or passageway to be charged with obstruction. If the person creates a potential obstruction, is warned to move, and refuses, he may be charged with obstruction.For example, a parade proceeding through a street without authority could be an obstruction to approaching cars, even if it was not actually blocking cars from passing at the relevant time. The potential obstruction must be capable of rendering passage unreasonably inconvenient or hazardous, rather than a hypothetical possibility.

• What if a person cannot move out of the way? An obstruction conviction generally requires proof the person “intentionally, knowingly, or recklessly” committed the offense. If a person does not intend to render a highway impassable, or render passage hazardous, they should not be convicted.For example, in Bailey v. State, a man was convicted of obstructing a highway after he wrecked his truck, and left the truck in the road. The appellate court reversed his conviction, holding there was no proof he intended to block the road at the time he crashed. Rather, he formed the intent to leave the obstruction after creating it.

WHAT IS THE STATUTE OF LIMITATIONS FOR OBSTRUCTING HIGHWAY OR OTHER PASSAGEWAY IN TEXAS?

The limitation period for obstructing a highway or other passageway charged as a Class A or Class B misdemeanor is two years. State jail felony obstruction has a three-year limitation period.

OBSTRUCTING HIGHWAY OR OTHER PASSAGEWAY IN TEXAS

A person commits obstruction if, without legal privilege or authority, he intentionally, knowingly, or recklessly: (1) obstructs a highway or street to which the public or a substantial group of the public has access; or (2) disobeys a reasonable, lawfully-issued order to move to prevent obstructing a highway or passageway. Originally enacted for safety purposes, the law aims to protect the traveling public, and prevent interference with traffic.

TEXAS OBSTRUCTING HIGHWAY OR OTHER PASSAGEWAY COURT CASES

The case law regarding obstructing a highway or other passageway in Texas draws attention to the limits of the law’s application.

• In Hardy v. State, demonstrators protesting the war in Iraq were convicted of obstructing a passageway after being warned and refusing to remove their tents from the side of the road. The Court of Criminal Appeals reversed the convictions. The defendants were charged with disobeying a reasonable order to move so that they would not become an obstruction, but they were never in the roadway so as to potentially render it impassable. Standing close to but not on or in the road, and pitching tents in the bar ditches, created no potential obstruction to passing vehicles.
• In McIntosh v. State, the defendant parked his 18-wheeler in the southbound lane of a two-way county road to make a delivery. The 18-wheeler was blocking the entire lane, was parked in a valley between two steep hills, and the recipient of the delivery advised the defendant not to park there because it was dangerous. Another driver crashed into the back of the 18-wheeler, and the defendant was convicted of obstructing a highway. The appellate court upheld his conviction, determining his actions amounted to criminal recklessness.