2022 Bike Case of the Month: State v. Portillo1
Relevance To Cyclists
- In cities with bike helmet laws, you can be stopped, searched and arrested for failing to wear a helmet.
- There is no statewide bike helmet law, but “home rule” cities (most cities in Texas) can enact them.
- City bike helmet laws are generally constitutional.
- In small cities (less than 5,000 people) there are no helmet laws (or any other city ordinances).
- The use of helmets can not only prevent serious head injury, but it can also help contraband-carrying cyclists from getting stopped, searched and arrested.
A Dallas Police Officer arrested the defendant Portillo for riding a bicycle without a helmet in violation of the Dallas helmet law in effect at the time2. The officer then conducted a pat down search and discovered that Portillo was in possession of cocaine.
Portillo filed a motion to suppress the cocaine found in the search arguing that the Helmet Ordinance was unconstitutional because it discriminated against cyclists as opposed to motorcyclists, who were not required to wear a helmet. The trial court agreed with Portillo and the State appealed.
B. Legal Issues
- Are Bike Helmet Laws constitutional?
Yes, they are. The Criminal Court of Appeals ruled that while it is not clear that helmets protect cyclists3, the ordinance nevertheless was enforceable as a valid exercise of Dallas’ police power, and the Dallas enforcement of the Helmet Law against Portillo was not “constitutionally compromised.”
- Can you be stopped, searched and arrested for failing to wear a bike helmet?
Yes, you can. The Criminal Court of Appeals noted that “a peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view” and that following an arrest, a search is allowed to remove any weapons and to prevent the destruction or concealment of contraband.
3. There is no statewide helmet law, but “home rule” cities can enact helmet and other bike laws4.
The only required equipment for a Texas cyclist are brakes and lights/reflectors. (See Tex. Trans. Code §551.104.5) The statute does not mention the word helmet, and as such the State Government does not require cyclists to wear helmets.
However, many Texas Cities have bike helmet (and other) ordinances. The power to enact such laws is dependent on the city being a “Home Rule” city. In general, Texas cities are either “General Law” cities (75%) or Home Rule cities (25%). Most cities with a population of over 5,000 are usually Home Rule Cities.
Home Rule cites have the full power of local self-government so long as their local ordinances are not inconsistent with state or federal law. Tex. Loc. Gov’t § 51.072. Thus, if a proposed home rule city action has not been prohibited, limited, or pre-empted by the state, the city generally can proceed. On the other hand, General Law Cities must look to state constitution and state statutes to determine what they may or may not do. In short, small Texas Cities6 cannot enact any local ordinances.
In short, if you live in a reasonably good-sized city, that city can enact laws pertaining to cycling that are either friendly (bike helmets, passing requirements) or unfriendly (you can’t ride your bike on a certain street or at a certain time). All that is required is that the ordinance have the purpose of promoting the health, safety, and general welfare of its people.
1State v. Portillo: 314 S.W.3d 210 (Tex. App – El Paso 2010) https://www.courtlistener.com/opinion/1466525/state-v-portillo/?order_by=dateFiled+desc
2Dallas used to have a helmet law for adults: Until 2014, all cyclists in Dallas were required to wear bike helmets. Now it is only minors. Dallas City Code Section 9.8(a) https://codelibrary.amlegal.com/codes/dallas/latest/dallas_tx/0-0-0-3948.
3While Reasonable Minds Might Differ, Reasonable Brains Do Not: The Criminal Court of Appeals stated that “reasonable minds” may differ as to whether the bicycle helmet ordinance at issue has a substantial relationship to the protection, public health, safety, or general welfare of the public.”
4The Court of Appeals did not discuss this point in depth, but it did consider ordinances created by Home Rule Cities, such as Dallas.
5Tex. Transportation Code 551.001: https://statutes.capitol.texas.gov/Docs/TN/htm/TN.551.htm
7For a listing of General Law Cities see https://directory.tml.org/search/government