The Lisa Torry Smith Act brings important changes to Texas law. It makes clear that cyclists can ride in crosswalks and now requires drivers to stop and yield before entering a crosswalk with a pedestrian or cyclist.
A gap in Texas law is allowing some drivers who hit people in crosswalks to get off scot-free, despite recently passed legislation meant to address the issue. It’s called the Lisa Torry Smith Act and was passed in 2021. This law requires drivers to “stop and yield” to pedestrians, bicyclists, and anyone else legally using a crosswalk. Aiming to prevent tragedies similar to the one that killed Lisa Torry Smith, the Act also provides heightened criminal penalties (up to a felony) if a driver hurts someone in a crosswalk.
Why do we have the Lisa Torry Smith Act?
In 2017, Lisa Torry Smith was walking her 6-year-old son to school when a driver struck them in a crosswalk. Lisa’s son was seriously injured. Lisa did not survive. Charges against the driver didn’t stick due to a deficiency in the law, specifically, because the driver wasn’t exhibiting “criminal negligence” by engaging in something like texting or drinking when he hit Lisa. Lisa’s family was outraged that the driver would not be held accountable and vowed to close this loophole in Texas law.
What’s the issue with the Lisa Torry Smith Act?
Since the Act was passed, we’ve handled multiple cases where drivers turned through a crosswalk and hit a pedestrian or cyclist. In these cases, we’ve cited the Lisa Torry Smith Act as part of our civil claims. The law clearly states that drivers must “stop and yield the right-of-way to a pedestrian crossing a roadway in a crosswalk.” Simple enough, right?
However, prosecutors are running into issues with the law’s wording when considering criminal charges. The Act says that a person commits an offense if they “with criminal negligence: (1) operate a motor vehicle within the area of a crosswalk; and (2) cause bodily injury to a pedestrian or a person operating a bicycle…”
The phrase “criminal negligence” has become a sticking point. Shouldn’t it be enough to prove that a driver was negligent by hitting a child in a crosswalk? Shouldn’t failing to stop and yield be sufficient for charges? Prosecutors are finding it’s not that straightforward.
To violate the Lisa Torry Smith Act, does someone additionally need to be criminally negligent?
I recently met with Fort Bend District Attorney Brian Middleton at his Richmond, Texas office. Middleton, an avid cyclist, is the one who drafted the text of the Lisa Torry Smith Act after a grand jury found no “criminal negligence” in Lisa’s case. Middleton and his team explained that under the Act, holding a driver criminally responsible requires proving injury or death after failing to stop and yield, plus a separate finding of criminal negligence. The “criminal negligence” could involve texting, excessive speeding, driving under the influence, or some other aggravating factor beyond simply failing to stop at a crosswalk.
It’s important to understand that not all crimes require intent. Speeding, for example, doesn’t require proving criminal intent—just that you exceeded the speed limit. These are known as “strict liability” offenses, and most traffic violations fall under this category.
Some crimes require proof of a culpable mental state, like acting intentionally, recklessly, or carelessly. In Texas, “criminal negligence” is the lowest level of criminal responsibility—less severe than “intentional” or “reckless” conduct. It’s essentially a form of carelessness, but Texas law considers it more serious than civil negligence.
Texas law defines criminal negligence as follows: “[a] person acts with criminal negligence 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.”
Sort of wordy and confusing? The definition is broad and leaves room for interpretation. Courts have clarified that the level of risk must be judged by the conduct itself, not the resulting harm. The key difference between criminal negligence and recklessness is that someone who is criminally negligent doesn’t realize the risk, while a reckless person is aware of the risk and ignores it.
The bottom line? Some prosecutors believe that to charge someone under the Lisa Torry Smith Act, the facts must show not only that a driver caused injury or death after failing to stop or yield but also that there was criminal negligence—like speeding, texting, or driving under the influence—on top of that.
What does Lisa Torry’s family think about this application of her law?
After meeting with District Attorney Middleton, I sat down with Gina Torry, Lisa’s sister. Gina and I have collaborated on several cases and have a lot of respect for each other’s work. When I asked her about the need for a separate finding of criminal negligence under the Act, she didn’t hesitate: “The failure to stop and yield under the new crosswalk law is criminal negligence. The driver ought to be aware of the substantial and unjustifiable risk that exists—or can result in—the failure to stop and yield. The failure to stop and yield can result in serious bodily injury or death. Any driver that fails to perceive this risk commits a gross violation from the standard of care that an ordinary person would exercise when it comes to stopping for someone attempting to cross the street legally through a crosswalk.”
She’s right—according to reports, the grand jury in Lisa’s case didn’t think the evidence showed criminal negligence, or “carelessness.” Gina believes that simply driving into a crosswalk and hitting someone walking or biking is inherently careless. In her view, that careless act should automatically satisfy the criminal negligence requirement under the Act.
Let’s revisit Texas’ definition of criminal negligence. A driver “ought to be aware of a substantial and unjustifiable risk,” and failing to recognize that risk must be a “gross deviation from the standard of care that an ordinary person would exercise under all the circumstances.”
Would an ordinary person understand the risk of hitting someone if they don’t stop or yield when driving through a crosswalk? Would such behavior be a gross deviation from what an ordinary driver would do? I hope so—for the sake of the safety of our communities.
So, are we any better off with the Lisa Torry Smith Act?
The Lisa Torry Smith Act brings important changes to Texas law. First, it now requires drivers to stop and yield before entering a crosswalk with a pedestrian or cyclist. Previously, drivers only had to yield. Adding “stop” makes the law clearer, easier to enforce, and improves safety at crosswalks.
Second, we’re using this law in civil injury cases against drivers’ insurance carriers. When an adjuster tries to blame our client for not avoiding a car, we can point to the law: drivers must stop and yield to anyone in the crosswalk. There’s no need to prove criminal negligence to hold drivers accountable in civil court.
Third, the Act clarifies that cyclists can legally ride in crosswalks. Before, there was debate about whether this was allowed. Now, it’s clear – people riding bikes have the same protections and legal remedies as pedestrians when using crosswalks.
While the Act isn’t perfect, it’s a significant step forward. It stands as a powerful reminder of Lisa Torry Smith’s life and the tragedy caused by a driver’s inattention. Alongside Gina (and hopefully district attorneys across the state), we’ll continue using this law in Lisa’s honor in our own cases to push for safer streets for all.
Charlie is a bicycle accident lawyer in Louisiana, Texas, and Mississippi and a member of the Bike Law Network.
Having served as the president of the Texas A&M Cycling Team, where he led the team in appearances in the U.S. Collegiate National Championships, Charlie has spent thousands of hours riding his bicycle in Texas.
