Page 29 - TPA Journal March - April 2018

shoulder in order to assess the objective reason- (2) to accelerate before entering the main traveled
ableness of the Trooper s traffic stop in this case. lane of traffic;
As the court of appeals pointed out, [d]riving is (3) to decelerate before making a right turn;
an exercise in controlled weaving. It is difficult (4) to pass another vehicle that is slowing or
enough to keep a straight path on the many dips, stopped on the main traveled portion of the high-
rises, and other undulations built into our road- way, disabled, or preparing to make a left turn;
ways. Even a driver who is sober, alert, and (5) to allow another vehicle traveling faster to
careful may occasionally drift within their lane pass;
only because the roadway surface is not perfectly (6) as permitted or required by an official traffic-
smooth. Moreover, drivers are not able to see if control device; or
their tires are touching the fog line. They are like- (7) to avoid a collision.
ly to veer over at some point and touch the fog line
alongside the roadway without being aware they The trial court, having viewed the video, found
have done so. Some lane boundaries have raised that even if Cortez had crossed into and driven on
reflective pavement markers or road grooves in the improved shoulder, he was statutorily entitled
the asphalt, rather than painted lines, to alert dri- to do so:
vers when they are veering too close to another
lane or are about to cross over into the shoulder. Texas Transportation Code section 545.058(5)
Sometimes these road grooves are on the fog line, [sic] provides that driving on the improved shoul-
sometimes they are alongside the outer edge of the der of a roadway is permissible under the circum-
painted fog line. Thus, we choose to evaluate the stances when and to the extent necessary a driver
totality of the circumstances in this case to deter- is being passed by another vehicle. The first occa-
mine the reasonableness of the Trooper s stop. sion in which the officer testified that the
Defendant drove onto the improved shoulder
Based on the totality of the circumstances in this occurred after the officer s vehicle entered the
case, we conclude that the court of appeals did not passing lane and accelerated toward the
err in holding that, if Cortezs tires touched the fog Defendants vehicle; therefore, the Defendant was
line at all, which is debatable, his momentary authorized by statute to drive on the improved
touch of the fog line, without any other indicator shoulder at such time.
of criminal activity, was not enough to justify the
stop of Cortezs minivan for driving on an Texas Transportation Code section 545.058(3)
improved shoulder. This decision is consistent [sic] provides that driving on the improved shoul-
with the interpretation given to section 545.058(a) der of a roadway is permissible when and to the
by Texas appellate courts and courts outside this extent necessary a driver is decelerating or slow-
jurisdiction that have addressed this issue and ing to make a right turn from the roadway. The
have held that a person drives on the improved Defendant was in the process of decelerating and
shoulder when they cross over the fog line. slowing to make a right turn from the roadway
onto the exit ramp when the second occasion took
Finally, the statute provides for permissible rea- place; therefore, the Defendant was authorized by
sons for a person to drive on the improved shoul- statute to drive on the improved shoulder
der. Section 545.058(a) allows a driver to drive on at such time.
an improved shoulder under seven listed circum-
stances: Regarding the first offense observed by the
(1) to stop, stand, or park; Trooper, as the trial court found, because section

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