When can the police arrest you for a traffic violation in Texas?

In Texas you can be arrested for almost any traffic violation— even minor traffic violations that are not punishable by jail time. Texas law gives police wide discretion in making arrests for traffic violations, and the even United States Supreme Court itself upheld a Texas officer’s authority under the United States Constitution to arrest a person for a minor traffic violation punishable only by a fine.¹ So there is essentially unquestioned legal authority, and lots of precedent, for Texas law enforcement to make arrests during a traffic stop for simple traffic offenses.

Before September 2017, there were only two traffic violations for which which a police officer cannot arrest you, the speeding offense and the open container offense.² For all other traffic offenses, police could choose whether or not to arrest you.However, in 2017 the legislature added a new law to this list. The third offense for which police must issue you a written citation is for a violation of Use of Portable Wireless Communication Device for Electronic Messaging; Offense.³Use of Portable Wireless Communication Device for Electronic Messaging; Offense is the texting-while-driving ban that was created during the same legislative session as the one that added the third offense to the no-arrest list.⁴ The legislature created the statewide texting-while-driving ban and then immediately added it to the no-arrest list at the same time that the texting ban went into effect.If the police issue you a written citation instead of arresting you, you must sign the citation issued to you by the officer to avoid arrest.⁵ By signing the citation, you are promising the State of Texas that you will appear in court to address the traffic violation. Failure to sign a citation gives an officer the authority to arrest you (even for speeding or an open container violation), although the officer does not have to arrest you. If you sign a citation for a traffic violation, you cannot be arrested for that violation under the Transportation Code. An officer may either have you sign a citation or arrest you, but not both. If you are initially arrested, you can secure your release by signing a citation. Because a citation is a promise that you will appear in court, an officer has no reason to detain you. For these reasons, in order to avoid arrest you should usually sign a citation issued to you by an officer who alleges that you committed a traffic violation and then challenge the citation later.

What Texas law says you can be arrested for traffic violations?

The Texas Transportation Code contains the Texas traffic laws. Chapter 543 of the Transportation Code specifies the arrest and charging procedures for people who police believe have violated a traffic law. Section 543.001 of the Texas Transportation Code states:⁶

Any peace officer may arrest without warrant a person found committing a violation of this subtitle.

The only exceptions to an officer’s discretion to arrest are found in Section 543.004(a) of the Transportation Code,⁷ which currently looks like this:⁸

(a) An officer shall issue a written notice to appear if:

(1) the offense charged is:

(A) speeding;

(B) the use of a wireless communication device under Section 545.4251; or

a violation of the open container law, Section 49.031, Penal Code; and

(2) the person makes a written promise to appear in court as provided by Section 543.005.

Different rules apply if the person stopped is a nonresident or operating a vehicle licensed in a different state.⁹ So, currently, if you are a Texas resident driving a Texas vehicle, the speeding offense, and the texting-while-driving offense are the only traffic violations that do not subject you to an arrest (unless you refuse to sign a citation, which could lead to an arrest even for those offenses).¹⁰

What happens if I sign a citation but fail to appear for court?

If you sign a citation but then later willfully fail to appear in court, you are committing a misdemeanor, regardless of whether or not you are found guilty of the original traffic stop charge.¹¹ A warrant will then be issued for your arrest, and you may be arrested by a peace officer at any time.

What is the open container law?

The “open container law” is the offense called “Possession of Alcoholic Beverage in Motor Vehicle” in Texas Penal Code Section 49.031(b).¹² This law states that it is a crime to have an open alcoholic beverage container in your car while driving. There are certain exceptions to the open container law for commercial vehicles that are meant to transport you while you are consuming alcohol (for example, a party bus). Learn more about the open container law

What should I do if I am arrested?

If you are arrested, you should contact a lawyer as soon as possible. The traffic violation charge can always be challenged after the fact, so it is best to stay calm and sign the citation. Learn more about what to do if you’ve been arrested

Can I be arrested for speeding?

Yes, you can be arrested for speeding, but only if you fail to sign the citation as the police officer requests. Learn why this is here

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Legal References:¹ Atwater v. City of Lago Vista, 532 U.S. 318 (2001). In Atwater, a Texas driver was pulled over for failing to wear a seat-belt. Although failure to wear a seat-belt is punishable by a maximum $200 fine, the woman was arrested during the course of her interaction with the officer. The woman sued the arresting officer, police chief, and city where she lived claiming a violation of her constitutional rights. The U.S. Supreme Court in Atwater held that officers can arrest people for traffic violations and further, that officers do not need a warrant to do so. The U.S. Supreme Court reasoned that because a police officer has probable cause to believe that a person has committed a crime, in this case a traffic violation, in their presence, an arrest following the traffic violation is constitutional.² See H.B. 62, 85th Legislature, Section 3. These are the changes made by H.B. 62:

(a) An officer shall issue a written notice to appear if:

(1) the offense charged is:

(A) speeding;

(B) the use of a wireless communication device under Section 545.4251; or

(C) a violation of the open container law, Section 49.031 49.03, Penal Code; and

(2) the person makes a written promise to appear in court as provided by Section 543.005.

³ Texas Transportation Code §543.004, as amended by H.B. 62, 85th Legislature, Section 3, effective September 1, 2017. Texas Transportation Code §543.004(c) states: “The offenses specified by Subsection (a) are the only offenses for which issuance of a written notice to appear is mandatory.” The list in Subsection (a) is as follows: “(A) speeding; (B) the use of a wireless communication device under Section 545.4251; or (C) a violation of the open container law, Section 49.031, Penal Code”⁴ Texas Transportation Code §545.4251, created by H.B. 62, 85th Legislature, Section 8, effective September 1, 2017.⁵ Texas Transportation Code §543.005 (“To secure release, the person arrested must make a written promise to appear in court by signing the written notice prepared by the arresting officer.”)⁶ Texas Transportation Code §543.001⁷ Texas Transportation Code §543.004(c)⁸ Texas Transportation Code §543.004(a)⁹ Texas Transportation Code §543.004(b) (“If the person is a resident of or is operating a vehicle licensed in a state or country other than this state, Subsection (a) applies only as provided by Chapter 703.”)¹⁰ See §543.004(a)(2). The conjunctive “and” is used immediately prior to “the person makes a written promise to appear in court as provided by Section 543.005.” This implies that both the written promise be made and the offense is one on the list in subsection (a)(1) in order for the mandatory written notice in subsection (c) to apply.¹¹ Texas Transportation Code §543.009(b) (“A person who willfully violates a written promise to appear in court, given as provided by this subchapter, commits a misdemeanor regardless of the disposition of the charge on which the person was arrested.”_¹² Texas Penal Code §49.031(b) (“A person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked. Possession by a person of one or more open containers in a single criminal episode is a single offense.”⁸ Texas Transportation Code Section 545.413(d) – “An offense under Subsection (a) is a misdemeanor punishable by a fine of not less than $25 or more than $50. An offense under Subsection (b) is a misdemeanor punishable by a fine of not less than $100 or more than $200.”