State of Texas: Ruling sparks Paxton’s push to oust conservative judges on Court of Criminal Appeals

dfwnewsa | February 25, 2024 | 0 | politics , Texas Politics

State of Texas: Ruling sparks Paxton’s push to oust conservative judges on Court of Criminal Appeals

AUSTIN (Nexstar) — Texas Attorney General Ken Paxton is not on the March Primary ballot, but he’s been active in the race, campaigning around the state for Republican candidates challenging some House members who voted to impeach him.

But Paxton is also mounting a different campaign effort that could have a more significant impact.

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He is backing challengers to three Republican judges who currently serve on the Court of Criminal Appeals, the state’s highest criminal court. It comes after those judges ruled the Texas Constitution prevents Paxton from prosecuting voter fraud cases.

In an interview Wednesday, Paxton called the decision “ludicrous” and urged voters to elect new judges to the court.

“So the voters now have a decision. Do you want voter fraud prosecuted or do you not want it prosecuted?” Paxton said. “If you want the laws that are passed by the legislature followed, we’re going to have to have Gina Parker, Lee Finley, and David Schenck elected statewide to overcome this decision.”

Sharon Keller is no liberal. After 24 years presiding over Texas’ highest criminal court, she has earned a reputation as a tough-on-crime conservative — a staunch supporter of the death penalty with consistent endorsements from several city police associations. And yet, she and two other conservative judges on the Court of Criminal Appeals are the latest targets of Paxton and his allies in the Trump family.

“Texas is under attack by activist judges like Sharon Keller, Michelle Slaughter, and Barbara Hervey who have stripped AG Ken Paxton of his authority to prosecute election fraud. It’s a disgrace!” Donald Trump, Jr. wrote on X on Monday night. “Conservative Texans must unite and reject these judges.”

Presiding Judge Keller said the controversy is fueled by “misinformation.”

“We didn’t strip the AG of his authority — the Constitution did,” Keller told Nexstar. “It’s strange, frankly, because most of the people that are now concerned about me being an ‘activist judge’ have supported me for decades because I am considered a Conservative judge. I think it’s a dangerous precedent for someone to take one opinion out of context and use it in an effort to get rid of Republican statewide officials.”

Of the thousands of cases these judges have adjudicated, Paxton and others are honing in on one ruling from three years ago that didn’t go his way.

In 2021, the Court of Criminal Appeals ruled 8-1 that the Attorney General does not have the independent authority to prosecute criminal cases. That was made clear by the Texas Constitution’s Separation of Powers Clause, they ruled, which reserved criminal prosecution to district attorneys and limited the Attorney General to civil matters.

“Since 1951, the legislature has directed the Attorney General to prosecute voter fraud. Out of the blue, the Court of Criminal Appeals — who no one ever follows — suddenly decided it was unconstitutional after thousands of cases and probably hundreds of judges had precedent saying prosecuting voter fraud was fine,” Paxton told Nexstar. “It’s ludicrous that this Court of Appeals suddenly, out of the blue after 71 years of precedent, struck down this statute.”

The incumbent judges say the Texas Constitution is clear: The Attorney General never had the discretion to prosecute election law violations.

“Since 1836, the Attorney General has never had the duty to initiate criminal prosecutions,” Judge Michelle Slaughter said. “It seems that our Attorney General is angry at us because we were not partisan political activist judges on his behalf.”

Slaughter, running for her second term on the Court of Criminal Appeals after five years as a district court judge in Galveston, is facing a Primary challenge. Lee Finley, a Dallas area criminal law attorney with no prior judicial experience, will contest her seat in the March 5 Primary.

Neither Finley nor Judge Keller’s opponent responded to Nexstar’s request for an interview.

A 2021 Court of Criminal Appeals decision may sound like insider knowledge for only the most devout Republican primary voters, and the incumbents say it has been coming up at campaign events.

Traditional wisdom would say it is nearly impossible to knock out a well-funded, five-term incumbent from a top judicial seat that garners little attention. But the attention from Paxton and Trump could put the judges at risk.

“Texas Politics are not local anymore. These are national fights. And that can be pretty influential,” said University of Houston Professor of Political Science Brandon Rottinghaus. “There are going to be a lot of people who are paying attention to this race who otherwise weren’t. And that’s the kind of place in politics where, as an incumbent, you’re going to be pretty nervous.”

To political observers, these challenges are the latest test of Paxton’s clout in a party increasingly split by infighting between the Trump-aligned wing and other Republicans.

“Ken Paxton is really taking his capital for a ride after he was acquitted by the Senate,” Rottinghaus said. “This is something that really for him is going to be his political fight. Because although he’s not on the ballot, his name is part of that conversation.”

Incumbent, former lawmaker face off in primary for Hill Country House seat

Voting is underway in the three-person race to decide which Republican is best to represent the Hill Country in the Texas House of Representatives.

State Rep. Ellen Troxclair, R-Lakeway, is hoping to hang onto her seat in the sprawling Texas House District 19, which spans west of Austin and includes Burnet and Fredericksburg. However, some of the votes she took last year unearthed a challenger in Kyle Biedermann, a retired state representative who’s now attempting a political comeback.

Manny Campos, a third Republican candidate, also jumped into the primary but was unavailable for an interview at the time this story was published.

On the first day of the early voting period, Troxclair held an event at a Bee Cave restaurant and brought in Texas Governor Greg Abbott to fire up supporters. The two Republicans even went to vote early together at Bee Cave City Hall.

The governor is putting his political weight behind Troxclair and other Republican candidates, making numerous campaign stops across the state for those who support his ongoing push to let families use public dollars to pay for private education.

“I’m trying to advocate for all of the Republican primary voters in those districts, and all of those districts is well over 80% of those voters who voted in favor of school choice in the last primary,” Abbott told reporters Tuesday after he voted. “They deserve to have a voice fighting for them in Austin, Texas, and my goal is to win as many of those as possible so those voters, their decision will matter when it comes to the next session.”

Troxclair said she’d keep pushing for school choice if voters send her back to the Capitol.

“We have such great schools in House District 19, but unfortunately, that is not true for so many children across Texas who are trapped in failing school districts, especially low-income kids,” Troxclair said Tuesday. “We can’t keep doing the same thing and expect a different result. We have got to make sure that we the taxpayers and leaders are doing what is required of us to get those children to a place where they’re set up to succeed in life.”

Troxclair is like other Republican lawmakers in Texas whose vote last year to impeach Attorney General Ken Paxton unearthed a primary challenger. In her case, it’s from Kyle Biedermann. He said that vote along with her previous support of House Speaker Dade Phelan made him decide to come out of retirement and attempt a political comeback.

“I couldn’t sit home and let somebody part of the Austin swamp that lives in Austin represent not only me, but my constituents,” Biedermann said Monday. “It’s a duty, and I really care about my constituents.”

Brian Smith, a political science professor at St. Edward’s University in Austin, said turnout in a primary like this one will be low and mostly driven by very conservative voters. He expects that to impact Troxclair’s reelection bid more than the other candidates.

“That’s going to hurt Troxclair because her opponents are running not to the center, but to the right of her,” Smith said. “So for her to win, she needs to get Republicans and that little bit of independents and maybe crossover Democrats, especially if the candidates to her right are able to really get that hardcore, no-RINO vote.”

Biedermann previously served for six years in the Texas House but retired from his seat in 2022 to focus on family and his hardware store businesses. During this campaign, though, he said he’d like to focus on water, density and growth issues in the Hill Country. He also supports what Abbott is doing at the border to deal with an increase in migrants crossing illegally into the country.

However, Biedermann said state leaders could have done more in the past. He suggested his past support of a Texas independence movement could have led to the creation of a plan that resulted in better security along the border.

“I’m proud of Gov. Abbott for being strong on that issue at the border now, but we could have been planning for this because the invasion has been happening for many, many years,” he said. “We could have been planning for this, but that’s the government for you. They don’t look long-term. Everything’s short term to the next election.”

A campaign sign for Kyle Biedermann sits in the window of a building in Fredericksburg. (KXAN photo/Will DuPree)

During Tuesday’s rally, Troxclair touted her support for Abbott’s latest border security initiatives, like busing migrants, placing buoys in the Rio Grande and stationing National Guard soldiers throughout the area. She even accompanied the governor to Eagle Pass earlier this month alongside other Republican incumbents he endorsed.

Ahead of the primary, she secured a lot of endorsements from the state’s major Republican leaders, including U.S. Senator Ted Cruz this week. Biedermann said this proves he’s more of the outsider in this race, which he argues may benefit him during this election.

“I’m not part of the Austin establishment,” Biedermann said. “I never was, and I’m sure the Austin establishment doesn’t want me back, but the people do. That’s how I won all my elections by the people because I never had the establishment.”

However, Troxclair said Biedermann’s past legislative experience makes him more of the insider.

“The reality is he’s been in office six times longer than I have. I’ve been there one year,” Troxclair told KXAN. “He’s a career politician…who doesn’t have any results to show for it.”

It’s now up to the voters of House District 19 to decide which Republican they think is best to take on the issues important to them and represent the Hill Country.

On the Democratic side, voters do have a choice to make there, too. There are two candidates — Dwain Handley and Zach Vance — vying to become their party’s nominee.

The early voting period for the Texas primary lasts from Tuesday through March 1. Election Day is March 5.

TxTag problems persist despite new surprise billing law

TxTag is driving Brad Ruhl mad.

“This is really crappy customer service,” he vented during a recent drive. “If this is how they handle a screw-up, I don’t want any part of it.”

In November, Ruhl, who has a TxTag account, received a 30-days past-due toll bill he wasn’t expecting from the Central Texas Regional Mobility Authority, or CTRMA, for $158.43 — $110 from collections. It’s a notice he should only have received if his TxTag toll account was empty or invalid and he refused to pay the toll bill.

Asked if TxTag ever told him there was a problem with his account, Ruhl responded: “Never.”

“I would say I probably have 20-30 hours into trying to wrestle this to the ground,” he said, reflecting on the time spent trying to get the bill straightened out.

Ruhl said, at first, a TxTag call center employee told him this was all a “mistake.” Emails show TxTag advised him to pay the CTRMA bill and told him he was “approved” to get a “refund.” But after weeks of back-and-forth with TxTag by email, the agency then told him, somehow, his car was “removed” from the account and his tag “deactivated” last spring, which he denies. He has, unknowingly, been racking up fees and fines ever since. As a result, TxTag refused to issue a refund, according to more recent emails.

“I said, ‘Well, that’s ludicrous. I have no reason to have removed my car from my TxTag account,'” Ruhl said he explained to TxTag.

“I have been through the mill to get this resolved,” he told KXAN at his kitchen table, surrounded by bills and emails. “I have made phone calls. I have done emails. I have shown up in person. I paid the bill and all of this — is an error that I didn’t cause.”

Ruhl, and at least two others who reached out to KXAN, say they were never notified of potential problems with their accounts by TxTag even though toll agencies in Texas are now required to “immediately” do just that to stop surprise toll bills under a new law, HB 2170, which took effect Sept. 1.

Toll agencies must now notify customers when there’s a problem with their account.

From the time the law went into effect in September through early February, TxTag sent out 127,732 letters, texts and emails notifying customers about billing problems, KXAN Investigates learned after submitting a public records request.

Still, Ruhl and at least two other customers who reached out to KXAN in recent months say TxTag never told them there was a problem with their autopay.

“TxTag has been compliant with HB 2170, sending credit card decline letters to TxTag account holders in the event their card on file was declined,” said TxDOT media relations director Adam Hammons. “Prior to HB 2170, TxTag sent account notifications if account holders opted into receiving communications through email or text, including credit card decline notifications.”

We wanted to see how other toll agencies have responded to the new law.

In contrast, records show the North Texas Tollway Authority, or NTTA, sent out 1,351,564 notices since the new law went into effect. NTTA — which supported HB 2170 in committee last session — has 6.5 million customers, which is more than double the amount of TxTag.

The Harris County Toll Road Authority with approximately 3.6 million customers, said it sent out more than 500,000 notifications since the law went into effect.

Bar charts showing the number of registered customers and the total number of notifications that have been sent to customers in accordance with HB 2170 for NTTA, HCTRA and TxTag. (KXAN Infographic/Dalton Huey)

CTRMA said a “small percentage” of pay-by-mail customers use a pre-paid license plate-based account to pay for CTRMA tolls.

“HB 2170 applies to these accounts,” said CTRMA spokeswoman Jori Liu. “The Mobility Authority remains compliant with this legislation.”

KXAN reached out to the bill’s author, Rep. Guerra, D-McAllen, and co-sponsor, Sen. Carol Alvarado, D-Houston. Guerra’s office said they are looking into the concerns.

Alvarado said if the law is not working, she’ll work to “address that” and, if necessary, will file additional legislation next session.

“I am grateful for the work of KXAN’s investigative reporting team on this issue,” Alvarado said in a statement. “Last session I was proud to work with Rep. Bobby Guerra to pass HB 2170 to immediately notify the holder of an e-toll collection customer account that their payment was not able to be processed. It is unfortunate to hear stories of these customers who are having a difficult time with their individual accounts, and I encourage these customers to reach out to their elected state officials for help clearing up those concerns.”

At his Texas Capitol office, State Rep. Terry Wilson, R-Georgetown, is already working on legislation, noting when it comes to problems with TxTag: “It’s happened to me, personally.”

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            man sitting at desk

Rep. Terry Wilson, R-Georgetown, at his Capitol office. He plans to re-file legislation next session to study the state’s toll agencies. (KXAN Photo/Richie Bowes)

It’s also impacting his constituents. The “volume” of complaints “sent up a red flag,” he said.

“When you look at the volume of calls and emails that we’re receiving, it’s obvious there’s problems,” Wilson said.

If re-elected, Wilson plans to re-file HB 3843, a bill he introduced last session. That bill would have required Texas A&M Transportation Institute to study all toll agencies in the state to find out what’s working and what isn’t to shape future recommendations or legislation.

“We really want to take the time to look at this holistically, see if there’s something we can do as a state to help the toll system,” Wilson said. “We want all parties to come to the table and help us find the best solution.”

Asked if, despite the new law, anecdotal complaints of some customers not being notified of account issues are a concern, Wilson responded: “That would be something that we would look at carefully.”

“It is a concern,” he said. “You know, at the end of the day, I’m sure that the toll system wants to comply with the law. But, that is certainly something we would look to in the study.”

The new law is meant to protect motorists’ wallets. TxTag and TxDOT declined our request for an on-camera interview and would not comment on Ruhl’s case except to say customer service is a “top priority.

“TxTag is always looking at ways to improve its ability to respond to customer requests and issues quickly and efficiently,” Hammons said in a statement. “The best thing customers can do if they have a concern about their account is to work with TxTag customer service in-person, online or over the phone at 1-888-468-9824.”

When Ruhl went to settle his overdue bill, CTRMA offered to reduce the amount owed from $158 to $87, he said.

CTRMA sends out a bill when someone doesn’t have an electronic tag, or their account doesn’t have enough money in it. The regional mobility authority doesn’t see why a tag is rejected. Liu said CTRMA works “cooperatively with TxTag” and, in Ruhl’s case, was willing to share “whatever information is required” to confirm he paid his bill on Nov. 23. so he could be reimbursed.

The regional mobility authority does not track TxTag “complaints.” Instead, CTRMA tracks the number of “inquiries” from TxTag customers made by phone or in-person, Liu said. Records obtained by KXAN reveal a quarter of all calls received from July-December last year were related to TxTag. In-person inquiries about it were between 31-38% during that same timeframe.

“The number of inquiries from TxTag customers who received a Mobility Authority toll bill or late notice has remained consistent month over month,” Liu said.

Liu urged customers with concerns to reach out to their tag providers.

By the end of last year, TxTag was receiving an average of 8,343 calls a day, according to an online TxDOT performance dashboard. That is up from around 4,578 at the beginning of 2021.

So far this year, the average number of daily customer calls TxTag is fielding dropped, slightly, to around 7,610 a day.

KXAN investigators found that data tucked inside TxDOT graphs that track TxTag customer service call data, which shows customers are currently waiting on hold an average of 13 seconds compared to 11 minutes in 2021.

The TxDOT data notes that circumstances such as the global pandemic made it difficult to have enough customer service representatives to handle incoming calls, which resulted in longer wait times.

After running into dead ends, Ruhl reached out to KXAN for help. Six days after we told TxDOT about his case, TxTag reversed course and reimbursed him $65.68, according to an email he shared with us. Back at his kitchen table, he said he is relieved his months-long fight — done “on principle” — is over.

Toll Issue Contacts

TxTag says those with issues should reach out to customer service in-person, online or over the phone at 1-888-468-9824. Rep. Wilson asked constituents experiencing TxTag and toll problems to contact his office. His Capitol office number is 512-463-0309. State Sen. Alvarado‘s Capitol office number is 512-463-0106. If you’re experiencing problems with TxTag, share your story with KXAN Investigators

“I’ll take what I can get,” said Ruhl, who has now recouped almost all of the money he was out. “And, I really do appreciate KXAN taking my inquiry seriously, and the follow-up on it. Without your help, none of this would have been resolved. I would have been just hanging out left to fight on my own, which got me nowhere … So, I very much appreciate that.”

“I’m happy,” he added. “And, I’m really thankful that KXAN stepped in.”

Austin highway a driverless truck ‘guinea pig’?

There’s a decent chance you’ve traveled next to a self-driving 18-wheeler on a Texas interstate.

The reason you may not have noticed, said Mike Arellano, is because they travel with backup drivers sitting in the seats — not controlling the wheel but ready to take over in case of a problem. Arellano is the Austin deputy district engineer with the Texas Department of Transportation and is helping lead the charge to keep up with — and enhance — the technology used in vehicles on Texas roads.

TxDOT is rolling out a “smart freight corridor” on a 21-mile stretch of State Highway 130 from Georgetown to Del Valle, Arellano explained.

The focus of the project, announced in November 2023, is to install technology along the highway that self-driving vehicles can access to travel more safely. Sensors, cameras and other equipment mounted on poles spaced roughly 650 feet apart will provide real-time notifications about road conditions.


           map showing 21 miles of SH 130 that will be part of the test

The Texas Department of Transportation is rolling out a “smart freight corridor” on a 21-mile stretch of State Highway 130 from Georgetown to Del Valle. (KXAN graphic / Wendy Gonzalez)

“That’s kind of like the last frontier,” he said. “So, they (self-driving 18-wheelers) can have information about wrecks, or people on the shoulder, or there’s a ladder in the lane — you know, miles in advance.”

TxDOT said it chose SH 130 because it’s a newer highway and already designed with infrastructure to support the technology. Also, a lot of self-driving trucks already use the highway, according to TxDOT. 

Independent of the smart-corridor project, two major companies behind self-driving big rig technology told KXAN they plan to remove safety drivers and go completely driverless by the end of the year.

A spokesperson for the California-based company Kodiak Robotics told KXAN it started operating self-driving big rigs on routes around Texas in 2019, always with backup safety drivers.

In that time, “the bulk of Kodiak’s deliveries have been between our Dallas operations hub and Houston, Austin, San Antonio, Oklahoma City, and Atlanta,” Kodiak spokesman Daniel Goff said.

Kodiak trucks have driven 2.5 million miles and delivered around five thousand loads in Texas and other states, Goff added.

Another company, Aurora Innovation based in Pennsylvania, began operating self-driving 18-wheelers with backup drivers in Texas in 2020, according to Aurora spokesperson Huy Nguyen.

With more than 30 trucks in its fleet, Aurora is “currently autonomously hauling goods, with vehicle operators behind the wheel, for companies like FedEx, Uber Freight, Werner, Hirschbach, and Schneider daily, with more than 100 trips a week,” Nguyen said. “If you have received a FedEx package in Texas, there is a good chance it’s been transported in an autonomous truck!”

  • Animation from Kodiak Robotics demonstrating how the company's self-driving 18-wheeler technology uses data from cameras, radar and lidar to navigate roadways (Courtesy: Kodiak Robotics)
  • Animation from Kodiak Robotics demonstrating how the company's self-driving 18-wheeler technology uses data from cameras, radar and lidar to navigate roadways (Courtesy: Kodiak Robotics)
  • Mock-up showing how technology on a self-driving 18-wheeler gathers data in order to travel roadways (Courtesy: Kodiak Robotics)
  • A Kodiak Robotics employee in the passenger seat of a self-driving 18-wheeler monitors the technology on a computer (Courtesy: Kodiak Robotics)
  • An Aurora Innovation self-driving big rig traveling on an interstate with a backup driver (Courtesy: Aurora Innovation)
  • A backup driver in a self-driving Aurora Innovation big rig with his hands near, but not on the steering wheel (Courtesy: Aurora Innovation)
  • Some of the technology mounted on the outside of an Aurora Innovation self-driving 18-wheeler to help it navigate roadways (Courtesy: Aurora Innovation)

Both companies told KXAN they plan to remove drivers on Dallas to Houston routes on Interstate 45 later this year and both said their autonomous vehicle technologies don’t require smart corridors to operate.

Tyler Duvall is the CEO of Washington D.C.-based startup Cavnue, the company TxDOT hired to transform the section of SH 130.

“Aviation is the best analogy,” he said. “You’ve got incredibly sophisticated aircraft, but they would never fly without an air traffic control function.”

Duvall said his company plans to begin installing equipment along SH 130 within the next six to eight months.

“So, we put poles, sensors, cameras, lots of technology up on the roadway, backed by software behind the roadway to crank out all kinds of analytics and analysis around what’s happening on the roadway,” he said.

  • Animation of SH 130 Smart Freight Corridor showing poles holding technology designed to communicate road conditions to self-driving 18-wheelers (Courtesy Cavnue)
  • Animation of SH 130 Smart Freight Corridor showing poles holding technology designed to communicate road conditions to self-driving 18-wheelers (Courtesy Cavnue)

Real-time road conditions, like weather changes, road hazards and traffic will be communicated directly to the autonomous semis, he said.

“I will never forget when I was doing driver’s ed when I was 16 years old many years ago,” Duvall said. “The last question asked was ‘What’s the single most important thing to improve safety on the roadway?’ The answer is time.”

“If you’ve got a truck going 68 miles an hour headed right for a stalled vehicle in the left lane, it’s a lot better to have that information two miles ahead than it is 300 meters ahead,” he said.

In September 2023, TxDOT entered into a $1.4 million contract with Cavnue for work on the smart corridor, according to records obtained by KXAN through the Texas Public Information Act.

According to the contract, the technology would “enable the development and operation of a live testing ground that permits TxDOT” to “evaluate integrated roadway and technology improvements that enable automated and connected driving systems” and allow TxDOT to scale the services on the agency’s portion of the SH-130 corridor, according to the statement of work.

Last month, Cavnue launched a similar project in partnership with the State of Michigan, testing driverless passenger vehicles in dedicated lanes.

Lewie Pugh represents the Owner-Operator Independent Drivers Association.

“Your highways and roads in the State of Texas are definitely being used as guinea pigs,” he told KXAN.

Pugh said his group is not against technology in driverless vehicles and on roads, but he worries about the accuracy of the road information and believes the focus should stay on cars for now. He cited safety concerns and crashes involving cars with self-driving capabilities.

“It’s probably good to get this stuff working right in a car before we put it to an 80,000-pound truck and turn it loose on the highway,” Pugh said.

John Esparza, president of the Texas Trucking Association, said he supports creating a smart roadway.

“The trucking industry is constantly working to improve safety, and this is good for all Texans, Esparza wrote in a statement to KXAN. “Smart Roads and adopting the advancements in safety technology help us do our part to make our highways safer for all Texans.”

While Texas moves full speed ahead on embracing driverless technology, national polls suggest the public would rather pump the brakes on driverless vehicles.

According to the latest AAA survey, 68% of those questioned said they were afraid of fully self-driving vehicles, 13% higher than the year before. 

The study had a margin of error of 4.3% and included over 1,100 interviews with 949 adults across 97% of the U.S. household population, according to AAA.

Arellano believes the SH 130 project will help alleviate fears the community may have because, he said, any vehicle with self-driving features will eventually be able to access the road information.

“We’re motivated to get this off the ground quick because we want to see the benefits with it,” Arellano said. “We’re always motivated to get to zero fatalities one day.”

Arellano stressed that while TxDOT is eager to benefit from better road information, the process will be slow and deliberate.

“This isn’t something that we’re flipping the switch on tomorrow,” he said.

He expects the smart corridor to be up and running by the end of this year but not before the state, along with a team from the University of Texas as a third party, verifies the accuracy of the information collected.

“If it’s successful, we can start using this as a template and a standard to start scaling it to other roadways,” Arellano said.

During the testing, TxDOT said it will compare road statistics before and after the use of the smart corridor to gauge any differences.

TxDOT, which will also receive a direct feed of the information relayed to vehicles, said it will also use the information to identify and clear road hazards more quickly. 

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