Texas Towing and Booting Act: Tex. Occ. Code 2308

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1 Texas Towing and Booting Act: Tex. Occ. Code 2308 Warren V. Norred, C. Chad Lampe, Norred Law, PLLC 200 E. Abram St. Ste. 300 Arlington, TX 76010

2 2 Types of tow proceedings: Tow Hearing (aka 452 or Probable Cause Hearing) and Section 404 Civil Suits Probable Cause Hearing: Only issues are 1. Did Probable Cause exist to tow? (most often) and 2. Were the fees within the maximum allowed (least often). No other issues are permitted to be litigated here Civil Suit: Recovery of tow fee, damages; $1000 plus triple tow fee if violation was intentional, knowingly, or reckless.

3 Your Fingers Will have Calluses from Picking all these Nits.

4 The TTBA is complicated because the State is allowing Vehicles to be stolen (basically). Keep in mind that Tow Companies are forcefully removing individuals vehicles and requiring them to pay $165-$300 to get them back for horrid offenses like parking over a line or buying a new car and coming home after office is closed and it gets towed for no sticker. A person s vehicle is their lifeline: work, shopping, school, etc. i s dotted and t s should be crossed by tow companies and parking facilities in fairness.

5 Probable Cause Hearing Venue Venue Shopping Lives! (sort of); can be in any JP in the county from which the vehicle was towed; or if booted county where parking facility located. Does not have to be the precinct where Defendant is. TEX. OCC. CODE Deadline to File: Before 14 th day after the tow, excluding weekends and legal holidays (what about illegal holidays?) unless a towed individual did not receive a notice of his right to tow (or notice is wrong), in which case it is not limited in time. Most courts call this 14 days, but a strict interpretation would make it a 13-day deadline. (See (a). This really needs to be changed.) Hearing shall be held before the 21st calendar day after the date the court receives the request for the hearing.

6 Probable Cause Cont d Court to Notify Parties: The court shall notify a) the person who requested the hearing, b) the authorizing parking facility owner or law enforcement agency that authorized the removal of the vehicle, c) the towing company, and d) the vehicle storage facility of the date, time, and place of the hearing in a manner provided by Rule 21a, Texas Rules of Civil Procedure. The notice must include a copy of the request for hearing. Most often reason for dismissal: No photos of tow sign or statement that no signs were present, which allows a challenge to jurisdiction. Burden of proof is on the person who requested the hearing and hearsay evidence is admissible if JP allows (kinda like all JP cases under the new rules). Whether Probable Cause Existed Whether Fees Charged Were Greater than Allowed Court Shall Make Written Findings of Fact and Conclusions of Law Award includes tow fee, costs of photos Court May award court costs and attorney s fees* to prevailing party

7 Probable Cause Cont d What constitutes No Probable Cause? Improper Signage Signs not at every entrance Signs too low/too high Language on signs wrong Sign stacking No signs Apartments No/Bad Notice for expired Registration/Inspection Strict Liability Statute: Failure to Comply = Illegal Tow

8 Signs International Tow Symbol Compliant Non-Compliant Sign Requirements stated in

9 Signs Required Language TEX. OCC. CODE (5)(A-C) each sign prohibiting unauthorized vehicles must: bears the words, as applicable: (A)"Unauthorized Vehicles Will Be Towed or Booted at Owner's or Operator's Expense"; (B)"Unauthorized Vehicles Will Be Towed at Owner's or Operator's Expense"; or (C)"Unauthorized Vehicles Will Be Booted at Owner's or Operator's Expense"; Common non-compliant Language: Unauthorized, Abandoned, Inoperable Vehicles, With Flat Tires, On Jack/Blocks, Expired State Inspection/Registration, Will Be Towed at Owners Expense & Liability,. [Required language is in quotes no deviation allowed.]

10 What s Wrong with this Sign?

11 In Our Humble Opinion International Towing Symbol isn t one. Language Unauthorized is non-compliant. The bottom edge of sign is less than five feet from the ground [ (a)(5) - signs must be installed so that the bottom edge of the sign is between five and eight feet above ground.] What about Minor Variation? A minor variation of a required or minimum height of a sign or lettering is not a violation of this chapter. It s a question of law. Black Bull Towing, LLC v. Ybarra (Ft. Worth COA 2015) as to lettering height 50% variation is not a minor variation (lettering was one-inch in height, but statute requires to two inches).

12 Sign Stacking Black Bull Towing, LLC. v. Ybarra The five-foot-height requirement from the ground, like the required size of the lettering, has been determined by the Legislature to be sufficient to be conspicuous enough to provide appropriate notice. Accordingly, weconclude and hold that as a matter of law, the sign s deviation from the height-off-the-ground requirement was not a minor violation of the statute.

13 Height and Lettering

14 Frequent Tow Hearing Issues See attached flowchart. Tex. Occ. Code When can nonconsent tow occur (signage/stickers, or car blocking drive): Compliant Signage, installed more than 24 hours prior, or Actual Notice, or Constructive Notice, comprising: notice of intent placed on front windshield that car is unauthorized, with a description of all unauthorized areas, warning of the tow, and a phone number to locate vehicle at all times, and notice of intent mailed to last registered address, which has the above information, with a 15-day warning after its postmark, unless the vehicle is moved to another unauthorized location, indicating the operator has seen the conspicuous notice, or Vehicle is blocking traffic, obstructing fire lane, in disabled space, or leaking fluid or presents threat, etc. (Fire lane has to be precisely marked see Tex. Occ. Code (c).)

15 Apartment Complexes Vehicles can be towed for obstructing gates, dumpsters, parking spaces for maintenance personnel, unpermitted semi trucks or trailers. To tow an emergency vehicle owned or operated by a government entity, LL has to follow the notice rules, because they are allowed to block traffic, leak fluid, and park in handicapped spaces. Texas Trans. Code 683 (regarding junk vehicles) is not limited by these rules. Except as provided by a contract described by Subsection (e), a parking facility owner may not have a vehicle removed from the parking facility merely because the vehicle does not display an unexpired license plate or registration insignia issued for the vehicle under Chapter 502, Transportation Code, or the vehicle registration law of another state or country. (e) A contract provision providing for the removal from a parking facility of a vehicle that does not display an unexpired license plate or registration insignia is valid only if the provision requires the owner or operator of the vehicle to be given at least 10 days' written notice that the vehicle will be towed from the facility at the vehicle owner's or operator's expense if it is not removed from the parking facility. The notice must be: (1) delivered in person to the owner or operator of the vehicle; or (2) sent by certified mail, return receipt requested, to that owner or operator. A provision of an apartment lease or rental agreement entered intoor renewed after January 2004, that is in conflict or inconsistent with this section is void and may not be enforced.

16 Property Code Violation: Apartments Apartment Complex Rules (Tex. Prop. Code , can be raised with Civil Suit, but not Tow Hearing, except to show the tow was unauthorized): LL must provide parking rules in lease or in an attachment specified in lease; Title to the paragraph containing the rules or policies must read "Parking" or "Parking Rules" and be CAPITALIZED, underlined, or printed in bold print. Tenant must sign agreement to the rules; LL can ask only for make, model, color, year, license number, and state of registration of the vehicle to be parked. LL must provide written notice to change policies, and has to prove he s provided notice by delivering it through CM/RRR, or noted in LL s files how he provided notice, including: Hand delivery to resident over 16 years old; Facsimile to tenant s designated notice fax number; Taping notice to inside of the main entry door of tenant s apt. Changes must apply to all tenants in the complex. may not be effective before the 14th day after the date notice of the change is delivered to the tenant, unless the change is the result of a construction or utility emergency. Changes must be justified by specific reasons, including necessity, safety, construction, etc. In a suit based on this violation, LL is liable for $100 plus towing costs, and prevailing party gets attorney fees (but not during a Tow Hearing).

17 Federal Preemption Sounds complicated. Don t Worry. Preemption is dead. (Yay!!!) History Lesson Tow companies used to argue federal preemption of local towing laws by the Motor Carrier Act, and did so fairly successfully until 2006, when VRC LLC v. City of Dallas, 460 F.3d 607 (5th Cir. 2006) was decided and a Dallas towing ordinance regarding tow signage was upheld as a safety exemption. Last year, however, Congress finally fixed this with a simple change in wording, which now states: [Federal authority over intrastate transportation with regard to motor carriers of property] does not apply to the authority of a State or a political subdivision of a State to enact or enforce a law, regulation, or other provision relating to the regulation of tow truck operations performed without the prior consent or authorization of the owner or operator of the motor vehicle. 49 USCS 14501) Remember the Phrase: Your plea to jurisdiction is DENIED.

18 Civil Suit A Probable Cause hearing is not a prerequisite for filing a civil suit under Nor is winning a probable cause hearing Res Judicatia to a 404 suit. Why? Because issues are different and can t recover damages in Probable cause hearing. Can be filed in JP, County Court/County Court at Law, or District Court Damages resulting from tow (physical damages to vehicle, stolen/damaged personal property, lost wages, cab fare) $1000 plus 3x towing or booting fee if violation is done intentionally, knowingly, or recklessly Statute does not provide for recovery for attorney s fees L (in all seriousness this really hurts tow victims). Attorney s fees can always be sought in equity. Negligence need not be proved (no connection between violation and the tow);

19 Violations (Most often) Bad signs just like Probable Cause Hearing height, wording, location, lack thereof, not permanently installed. No written verification from Parking Facility to Tow Company prior to towing commencing, required by (1). PF is primarily responsible for signage, but TC can t legally tow w/o it. Tow Company gave Parking Facility something of value besides signage. No call to police within two hours of tow (see also ). Expired towing licenses = bad tow. No signs at one entrance = bad tow. Failure to state on tow ticket who authorized tow. Towing from a PF with whom the TC has no contract. Failure to mail notice for registration/expired license plates. No insurance (tow company). Parties often argue about who is liable; we argue it is joint and several. Stashing - use of intermediate car lot is prohibited, NOTE: Vehicle Storage Facility violations, e.g., demanding cash payment, are not violations of the TTAB Act, but of > file TDLR complaint.

20 Case Law One inch is not a minor variation of two inches. Black Bull Towing, LLC v. Ybarra, 2015 Tex. App. LEXIS 5951 (Tex. App. Fort Worth June 11, 2015)(Currently before the TX SC; FW Court of Appeals found 50% was not a minor variation.) Improper signage likely prevents probable cause. Fidelis v. Smith, 2009 Tex. App. LEXIS 7815, *7 (Tex. App. Houston 14th Dist. Sept. 24, 2009).

21 Frequent Objections I don t have a parking facility, or I m not a parking facility owner. If you can authorize removal of a vehicle or have exclusive right to use a space, you are a PF owner TAC 86.10(15), Tex. Occ. Code (7-a) If a parking space is restricted to use for some people or used for paid parking, or commercial, church, school parking, or HOA you have a parking facility. - Tex. Occ. Code (7)

22 Closing/Questions? If I don t know the answer, I ll make one up. Trust me, I m a lawyer. Illegal tow victims can report those tows to TDLR; it costs nothing, and can often wind up with a refund. TDLR fines are more severe than can be achieved through 404 suit (but tow victims don t see those $$).