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A lawyer proves a driver was texting at the moment of a crash with evidence from several sources that point to the same few seconds: the phone company’s records of when messages were sent, video, witnesses, the police crash report, and anything the driver admitted. A suspicion that the driver looked distracted is where the search for that evidence often starts. Scott Scherr, a Bryan-College Station distracted driving attorney at The Payne Law Group, gathers that proof for injured people across Brazos County, including phone company records that a lawyer obtains through the court process.
What Texas Law Says About Texting Behind the Wheel
Since September 1, 2017, Texas has made it illegal to read, write, or send an electronic message on a portable phone while driving, unless the vehicle is stopped. The ban covers more than text messages. It reaches any data a driver reads or types to communicate with another person, which includes app messages and email. The statute also lists defenses to the charge, including use of a hands-free device, a GPS or navigation system, or a function that plays music.
Two details in the law matter for an injury claim. First, a texting charge can rest on an officer’s observation or on other evidence. Second, an officer who stops a driver for texting cannot take or search the driver’s phone unless another law authorizes it. In a civil case, a Scott builds the proof from records, video, and witnesses. TxDOT reports that distracted driving caused 86,384 crashes on Texas roads in 2025.
Can Cellphone Records Be Used as Evidence?
Yes. The phone company’s records can show whether the driver sent or received a text over its network in the seconds before impact. Scott lines up those timestamps with the time of the crash, taken from the crash report, 911 call logs, and video.
A federal privacy law limits what the phone company can release. It bars a carrier from disclosing what a stored message said, with listed exceptions, such as the consent of the sender or the recipient. The same law treats account records differently. It allows a carrier to give account records, such as the times messages were sent and received, to a private person.
Once a lawsuit is on file, Texas court rules let a lawyer:
- Send the other driver a written request to produce relevant records, including a specific request for electronic data in a stated format, once the driver’s initial disclosures are due
- Serve a subpoena on the phone company, which is not a party to the case. A subpoena is a written order to produce records, and a Texas lawyer can issue one as an officer of the court
- Subpoena records from other outsiders, such as an employer that issued the driver a work phone
The phone company can object to a subpoena, and the side that asks for the records pays the company’s reasonable cost of producing them. The rules also require the request to describe the records with reasonable particularity, so Scott asks for a specific phone number and a short window of time around the crash.
Carrier records have limits. Messages sent through iMessage travel over Wi-Fi or cellular data instead of the carrier’s text-messaging service, so they may not appear in the phone company’s text records. When that happens, Scott looks to other proof, such as video, witnesses, the driver’s own statements, and, in some cases, a court-ordered examination of the driver’s phone.
What Other Evidence Can Prove Distracted Driving?
Phone records show that a message was sent or received. The rest of the evidence connects that phone activity to the driver’s eyes and hands. Useful sources include:
- The police crash report. An officer who investigates a Texas crash that injures someone must write a report on a state form built to record the cause. The form has codes for texting, talking, and other phone use, plus a separate field for factors that were present when the officer could not tell whether they contributed. Anyone involved in the crash can request a copy.
- Video from dash cameras, traffic cameras, and cameras on nearby businesses or homes
- Statements from eyewitnesses and passengers who saw the driver looking down or holding a phone
- What the driver said at the scene, such as an apology for looking at a phone, so tell the officer and write it down
- Photos of the scene and the vehicles, including where each car came to rest
- Vehicle data, if the vehicles recorded speed and braking in the seconds before impact
- An accident reconstruction specialist, who studies the damage, the road, and the vehicle data to explain how the crash happened
The officer’s contributing factor entries are the officer’s opinion. TxDOT’s instructions tell officers they can record those factors without enough evidence to file a traffic charge, so a crash report can point to phone use even when the driver received no ticket.
Do You Have to Prove the Driver Was Texting to Recover Compensation?
No. Texting is one way to prove fault. Texas negligence law asks whether the other driver failed to use ordinary care, meaning the care a reasonably careful person would use in the same situation. You must show what the driver did wrong and that it caused the crash.
Evidence that a driver rear-ended stopped traffic, drifted across a lane, or never braked can support a finding of negligence without any phone records. The state crash form reflects the same idea. It lists driver inattention and distraction in the vehicle as factors separate from phone use.
Expect the insurance company to argue that you share the blame. Under Texas proportionate responsibility rules, the jury, or the judge in a trial without a jury, assigns each person a percentage of fault. An injured person found more than 50% at fault recovers nothing, and anyone at 50% or less has the award reduced by that percentage. In car accident claims across Brazos County, proof that the other driver was texting gives the jury a concrete reason to assign fault to that driver.
Why Is It Important to Act Quickly After a Car Accident?
Some proof of texting can disappear before anyone files a lawsuit. Businesses control their camera systems and can record over old video. Witnesses move, change phone numbers, and forget details. A lawyer cannot subpoena video that has already been erased.
A lawyer can send written discovery requests to the other driver only after a lawsuit is filed. Texas court rules do not let one side serve discovery on the other until the other side’s initial disclosures are due, unless the parties agree or the court orders otherwise.
Before then, Scott can send letters asking the other driver, the insurer, and nearby businesses to keep the video, phone records, and vehicle data. Once the other driver knows, or reasonably should know, that there is a substantial chance of a claim, Texas law requires the driver to take reasonable steps to keep relevant evidence in the driver’s possession or control.
Scott sends a preservation letter to the driver directly, not only to the insurance company, so there is a clear record of that notice. A business that is not part of the case generally has no duty to keep its video, and some camera systems record over footage in about a month. Scott asks for the footage right away and, once a lawsuit is filed, can subpoena whatever is left.
You can protect the claim now. Request a copy of the crash report, write down what you saw and heard, save your photos, and keep the names of witnesses. Texas sets a two-year deadline, counted from the day the claim arises, to file a personal injury lawsuit.
How Scott Scherr Helps After a Texting Crash in Bryan-College Station
Scott Scherr, a Bryan-College Station personal injury attorney at The Payne Law Group, is Board-Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization, a credential held by fewer than 2% of practicing Texas attorneys. Scott subpoenas and reviews cellphone records, works with accident reconstruction specialists, interviews witnesses, and reviews nearby security camera footage. Contact Scott Scherr for a free consultation, available 24/7/365.