Legally Speaking – with Bob Mionske: Two-by-two

By Bob Mionske

Dear Bob,
In Texas, is it legal to ride two abreast or must all riders be single file? I appreciate your help,
T.B.,
Texas

Dear T.B.,
Grab yer ridin’ pardner, T.B., because riding two abreast is legal in Texas. Yee-Haw!

To find out why, let’s mosey on over to the Texas Transportation Code. Section 551.103, which governs the operation of bicycles on the roadway, and states in part:Persons operating bicycles on a roadway may ride two abreast.Persons riding two abreast on a laned roadway shall ride in a single lane. Persons riding two abreast may not impede the normal and reasonable flow of traffic on the roadway. Persons may not ride more than two abreast unless they are riding on a part of a roadway set aside for the exclusive operation of bicycles. Now let’s look at what these requirements mean. The first part is self-explanatory; if there’s somebody out there who doesn’t understand it, they probably shouldn’t be on the road. What about that second part though? What’s a “laned roadway”? In Texas, as in many other states, a “laned roadway” is a roadway that is divided into at least two clearly marked lanes for vehicular travel. This requirement means that although you are permitted to ride two abreast, you can’t take up more than one traffic lane to do so.

Now even if you’re abiding by those requirements, the State also requires that you not impede “the normal and reasonable flow of traffic” on the roadway. That’s the kind of language that pricks up the ears of lawyers everywhere. So far, a snooze-fest, and then suddenly, intriguing language. What exactly does the State mean by “normal and reasonable flow of traffic”?

Unfortunately, Texas doesn’t really tell us what it means by “the normal and reasonable flow of traffic.” That’s not unusual, because that phrase is used in numerous states, and from the states I’ve checked, none of them explain what it means. Well, let’s try to make some sense of it anyway. When states use the phrase “normal and reasonable flow of traffic,” it’s always within the context of a law that says you can’t impede traffic. In one case, Satter v. Turner, the Minnesota Supreme Court held that these “slow speed” statutes are “intended to apply to vehicles traveling in the normal stream of traffic.” This implies that the “normal flow of traffic” is the mainstream flow of traffic on a roadway, rather than traffic at the margins of the roadway. However, in Minnesota, as in many other states, including Texas,

“traffic” means pedestrians, ridden or herded animals, vehicles, streetcars, and other conveyances, either singly or together, while using any highway for purposes of travel.

Despite this all-inclusive definition of traffic, in Satter v.Turner the Minnesota court was referring specifically to the mainstream flow of traffic, rather than to the flow of all traffic, when discussing “the normal stream of traffic.” Thus, the slow speed statutes are only applicable to vehicles traveling in the mainstream flow of traffic, rather than to vehicles outside the mainstream flow of traffic.

OK, so that’s one part of the phrase “normal and reasonable.” Now let’s look at what “reasonable” means. In traffic laws, the word “reasonable” is also used in statutes that prohibit speeds that are greater than is “reasonable or prudent.” That still doesn’t tell us what “reasonable” means, but fortunately, it has been defined; in People v. Banat, the California Supreme Court held that “reasonable” refers “to the speed at which a vehicle is driven.” Factors that courts have used to determine whether a speed is “reasonable” include the nature, width, and grade of the roadway, the locality, traffic conditions, the driver’s familiarity with the road, and the condition of the car.

Now that we have an idea of what “normal” and “reasonable” mean, let’s put them together—literally—to see what the law is telling you. As we saw, in Texas “persons riding two abreast may not impede the ‘normal and reasonable’ flow of traffic on the roadway.” In order for this law to be applicable, the flow of traffic must be both normal and reasonable—it can’t be just “normal flow” or “reasonable flow,” it must be “normal and reasonable flow.” Furthermore, the law is only applicable if you are riding two abreast. What this means is thatif you are riding two abreast, andif you are riding within the normal stream of traffic, andif the normal stream of traffic is moving at a reasonable speed, you may not impede the flow of that traffic. If each of these elements is present, it is possible that you could be convicted of violating this statute. However, if any one of these elements is missing, you can’t be convicted of violating this statute. Let’s look at some examples. First, suppose you’re riding two abreast, but you’re not riding within the normal stream of traffic, which is moving at a reasonable speed. Because you’re not within the normal stream of traffic, you can’t be convicted of impeding the flow of traffic. Let’s look at another example. Suppose you’re riding two abreast, and you’re riding within the normal stream of traffic, but traffic is not moving at a reasonable speed; again, you can’t be convicted of impeding the flow of traffic. Finally, suppose that you’re riding two abreast, within the normal stream of traffic, which is moving at a reasonable speed, but you are riding at that same speed. Again, you can’t be convicted of violating the statute. As long as you’re riding in compliance with each of these four elements, or alternatively, if any one of these four elements is not applicable, you can’t be convicted of violating this section of the statute.

Now there’s one more question this clause in the statute raises. If you’ll recall, in Trotwood v. Selz (see Yougotta fight for your right to slooooow down), the Ohio Court of Appeals held that a “a bicyclist is not in violation of the [impeding traffic] ordinance when he is traveling as fast as he reasonably can.” So if you can be convicted of impeding traffic under this Texas statute, does that mean that Trotwood v. Selz doesn’t apply in Texas? I believe that a Texas court would adopt the holding of Trotwood v. Selz, in a case involving the same set of circumstances. However, that set of circumstances is narrow, which makes an impeding traffic conviction a possibility if the state statute is violated. Let’s take a closer look at why. First, remember that Trotwood v. Selz is an Ohio case, so it doesn’t actually apply in Texas to begin with, but it does have persuasive authority in other states, including Texas. Second, Trotwood v. Selz involved the violation of a local ordinance that prohibits impeding traffic, rather than a violation of an Ohio state law that requires that “Every person operating a bicycle upon a roadway shall ride as near to the right side of the roadway as practicable…” As the Ohio Court of Appeals noted in its decision, had Selz been charged with a violation of that state law, “the evidence in the record would be sufficient to support a conviction on that charge.”

Now Texas also has a statute that is similar to the Ohio statute; Section 551.103 of the Transportation Code (the same section governing cyclists riding two abreast) requires that “a person operating a bicycle on a roadway who is moving slower than the other traffic on the roadway shall ride as near as practicable to the right curb or edge of the roadway, unless”the person is passing another vehicle moving in the same direction; the person is preparing to turn left at an intersection or onto a private road or driveway; ora condition on or of the roadway, including a fixed or moving object, parked or moving vehicle, pedestrian, animal, surface hazard, or substandard width lane, prevents the person from safely riding next to the right curb or edge of the roadway.

As you can see, the Texas statute allows for situations where road conditions would preclude riding to the right. However, although the Ohio statute doesn’t specify similar allowances, they are probably as applicable in Ohio as they are in Texas, because the operative word in both of these statutes is “practicable.” By “as near as practicable,” both legislatures mean as close as is reasonably capable of being accomplished under the conditions. This means that if there are no conditions that prevent you from riding to the right, you must ride to the right. In Texas, the legislature has suggested some conditions which would justify not riding to the right, while in Ohio, the legislature has merely implied that there are conditions which would prevent a cyclist from riding to the right. Also note that in Texas, you’re only required to ride to the right if you’re riding at a slower speed than the other traffic on the roadway, while in Ohio, you’re required to ride to the right regardless of the speed of other traffic.

Which brings us back to Trotwood v. Selz. It’s likely that a Texas court would hold, as the Ohio court did, that a “a bicyclist is not in violation of the [impeding traffic] ordinance when he is traveling as fast as he reasonably can” if a cyclist is charged with a violation of a local impeding traffic ordinance. This is because, as in Ohio, the legislature in Texas has not seen fit to exclude bicycles from the roadways. However, as in Ohio, a cyclist must be in compliance with the state law governing the operation of bicycles on the roadway to avoid an impeding traffic conviction under the state law. What this means is that as long as you’re riding in compliance with section 551.103 of the Texas Transportation Code, it’s likely that a Texas court would uphold your right to ride on the Texas roadways. To bring it back to your original question, you’re permitted to ride two abreast as long as you’re not impeding traffic.

Now, one more point about the Texas statute: This section also prohibits cyclists from riding more than two abreast unless they’re riding on a part of the roadway set aside for the exclusive operation of bicycles. This means no echelons and no double pacelines that spread across the lane, unless you’re riding on a bicycles-only trail, or if you’re riding on a roadway that has been set aside for the exclusive operation of bicycles—which probably means you’re riding in a bicycle race.

As you can see, T.B., with some restrictions it is legal to do the Texas Two Abreast, so saddle up!Good luck,
Bob
(Research and drafting provided by Rick Bernardi-law student-Lewis and Clark)

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