Obstructing Highway or Other Passageway – Texas Penal Code §42.03

Texas Criminal Law

2021 Legislative Update Notice: Significant changes were made to the Obstructing Highway or Other Passageway law in the 87th Texas Legislature. This page is being updated accordingly. If you have urgent questions, please book a consultation with us.

The Texas offense of Obstructing Highway or Other Passageway makes it illegal to obstruct a highway or “other passageway” without legal privilege or authority. It also requires you to move if law enforcement makes a “reasonable” request for you to disperse during a public safety event (like a riot) or to prevent the obstruction of a highway or passageway.

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Obstructing a Highway is sometimes offered by state prosecutors as a reduced charge as part of a plea bargain in a DWI case. The penalties associated with an “Obstruction” charge are significantly less than that of a DWI charge, even though both are crimes are Class B misdemeanors. The reason for this is that DWI convictions have minimum criminal penalties that are specific to DWI, and there are non-criminal penalties (like license suspensions, insurance premium hikes, DPS surcharges, etc.) associated with a DWI conviction that are not associated with an Obstructing a Highway.

The Obstructing a Highway offense describes two different scenarios: one in which someone is currently obstructing a highway or other passageway, and one in which someone may not be obstructing anything, but instead ignores an order from law enforcement to disperse or move. The law of the Obstructing a Highway charge is discussed in more detail below.

What is the current Texas law about Obstructing a Highway?

The current Texas law defines the offense of Obstructing Highway or Other Passageway in Penal Code Section §42.03 as follows:[1]

(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.

How can I be charged with Obstructing a Highway?

If you are charged with Obstructing a Highway, the state’s attorneys must prove that you obstructed a highway or one of the other passageways described in the law, and you can be convicted whether you were acting alone or as part of a group. However, you must have been acting intentionally, or with knowledge that you were doing the obstructing, or recklessly as to whether you were doing the obstruction. You don’t have to know you were committing a crime, you just have to be aware of your actions or be acting recklessly as to the possibility that you were creating the obstruction.

You can also be convicted if you “intentionally, knowingly, or recklessly” refused to move after being told by a police officer (or fireman or anyone else who has the authority to control the premises) to move. However, the request must have been reasonable, so the request can’t have been issued just to harass you. Of course, the reasonableness of the request will ultimately be determined by a jury or a judge after you have been arrested. The state’s attorneys must also prove that you knew or were informed that the person had the authority to tell you to move, and they must also prove that reason for telling you to move was one of those listed in subsections (a)(2)(A) or (B).

What does obstruct mean under Texas law?

The law defines “obstruct” as: “to render impassable or to render passage unreasonably inconvenient or hazardous.”[2] So a passageway will still be considered obstructed even if someone could technically pass. For instance, if someone stood in the middle of a busy highway with a gun and demanded that passers-by answer three questions before passing (Monty Python-style), that would be an obstruction in violation of the Obstruction of Highway law.

Do I have to be ordered to disperse?

If you are prosecuted for Obstruction based on Texas Penal Code §42.03(a)(2), the state must prove that your alleged failure to disperse occurred after being ordered to disperse by someone that you knew (or had been informed) had “authority to control the use of the premises.”[3]

In addition, the Penal Code provides a defense to prosecution based on the First Amendment rights to free speech and the freedom of association if the order “was manifestly unreasonable in scope.”[4]

Should I accept a plea to an Obstruction charge?

If you have been charged with DWI and the state’s attorneys are offering you an “obstruction plea,” (“obstruction” refers to the offense of Obstructing a Highway) it typically means that there is some defect in their case that would make it difficult or impossible to prove that you committed the DWI offense. Many counties refuse to make this kind of offer, but some (including Dallas County and Harris County) will consider it. However, whether or not you should accept this plea bargain is a different question.

Historically, one of the main advantages to an Obstruction reduction after a DWI charge is that the obstruction could be removed from your record, whereas the DWI charge could not be removed. However, under the new nondisclosure law, DWI charges can often be removed from your record the same way that Obstructions charges can be removed. So, if you’re considering an obstruction plea, there may not be a huge benefit to taking an obstruction reduction. It is important that your trial court attorney handle any obstruction plea correctly in order to preserve your record clearing opportunities. Learn more about clearing your record after an Obstruction charge below

If the prosecuting attorney believes the case is so bad that they are willing to plea it down to Obstruction, then you should consider fighting the case in trial. Everyone is entitled to a jury trial, and if the state is unable to prove their case, then a jury should find you Not Guilty. A Not Guilty verdict is always better than a Guilty verdict, even if the Guilty verdict came as a result of you accepting an Obstruction plea bargain offer.

On the other hand, there is always a risk in going to trial. No attorney can promise that a jury will find you Not Guilty. So accepting the plea bargain agreement to an Obstruction plea will eliminate any risk that you are found Guilty of a DWI. This is a valuable outcome, and it has many other benefits including saving a lot of time. It is a decision you should not take lightly.

Can an Obstruction charge be removed from my record?

Yes, obstruction charges can sometimes be removed from your record. However, it is critically important that the case be handled correctly at the time of your plea bargain to preserve this right. If it is done incorrectly by your trial court attorney, you can very easily lose this ability to remove it from your record. Visit our Record Clearing pages for more information about whether you might be eligible

Also, many DWI cases can now be nondisclosed, if you’re considering a reduction to Obstruction after a DWI charge, you may want to consider whether it’s worth it – if you’re eligible to receive a nondisclosure even if you plea to the DWI or lose at trial, then there’s no need to take an Obstruction reduction just to preserve your record clearing rights.

What changed in 2021?

In 2021, two bills were passed during the 87th Texas Legislature that made major changes to this law. Both the Texhas House (in H.B. 9) and the Texas Senate (in S.B. 1495) passed bills amending the law. Unfortunately, the bills amended the laws in different ways, so the statute does not have one fixed form.

What is the punishment for Obstructing a Highway?

The Obstruction of a Highway offense is classified as a Class B misdemeanor,[5] but the state can enhance the punishment range to a state jail felony if they can prove that the one of the circumstances listed in (c)(1), (c)(2), (d), (e)(1), (e)(2) or (e)(3) applies.

Legal References:

^1. Texas Penal Code §42.03^2. Texas Penal Code §42.03(b)^3. Texas Penal Code §42.03(a)(2)^4. Texas Penal Code §42.04

(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.

^5. Texas Penal Code §42.03(c)

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