A proposed constitutional amendment filed this week appears to do one thing, but it might in actuality do something quite different.
HJR 106 would add a provision to the Texas Bill of Rights (Article I, Texas Constitution) to secure the right of a person “to travel in a vehicle using human decision-making to operate the vehicle.” On its face, it appears that the proposal targets fully automated vehicles that prevent the driver from taking control. But the proposal goes on to make exceptions that authorize the legislature to make laws (or agencies to make regulations) that, among other things, “impose or are subject to a criminal penalty” or restrict “the use of a vehicle resulting from the commission of a criminal offense or other violation of the law or regulation.”
Certainly, there are a number of ways that people use motor vehicles in the commission of a criminal offense, but the proposal raises a troubling question: does it sanction the legislature enacting a statute criminalizing the use of a motor vehicle in Texas to travel to another state for health care services that are illegal in Texas? We think it very well could do that because it appears to grant a new right and then, fairly broadly and significantly, allow the state to curtail that right. As we read the 35 sections of Article I, which begin with the freedom and sovereignty of the state and end with the right of nursing facility residents to designate an essential caregiver, none of them do such a thing. In other words, the specific right or liberty is positively asserted and not subtracted from. It is particularly disturbing that the proposal uses the phrase “right to travel” in a vehicle, not a person’s “right to own and operate” a vehicle. It’s odd, to say the least, to guarantee a right to a passenger who may or may not have any interest in the vehicle at all.
While we do not know what the precise intent of HJR 106 may be, it seems to us that if the objective is to stop the advent of fully automated vehicles, all you need to say is something like: “To the extent that a person has the legal, mental, or physical capacity to own and operate a motor vehicle, the person has the right to own and operate a vehicle using human decision-making.” If you wrote it that way, you wouldn’t need the exceptions. Or, you could add language to the proposal making it clear that this section shall not be interpreted to abridge a person’s right to travel under this or the federal constitution or to authorize the legislature to enact a law abridging the right to travel. In any event, HJR 106 is unlike anything we have seen before and in a format unlike anything we have seen before. That usually means a lot of litigation will be necessary to figure out exactly what the amendment actually protects.
