By: Gonzales, et al. H.B. No. 2571
COMMITTEE SUBSTITUTE FOR H.B. No. 2571By: Uresti By: Uresti
(In the Senate - Received from the House April 29, 2009;
May 12, 2009, read first time and referred to Committee on
Administration; May 21, 2009, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 5, Nays 0;
May 21, 2009, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to the licensing and regulation of towing companies and
vehicle storage facilities; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 2308.002, Occupations Code, is amended
by amending Subdivisions (3), (6), and (8) and adding Subdivisions
(5-a), (7-a), and (8-a) to read as follows:
(3) "Consent tow" means any tow of a motor vehicle in
which the tow truck is summoned [initiated] by the owner or operator
of the vehicle or by a person who has possession, custody, or
control of the vehicle. The term does not include an incident
management tow or a private property [a] tow [of a motor vehicle
initiated by a peace officer investigating a traffic accident or a
traffic incident that involves the vehicle].
(5-a) "Incident management tow" means any tow of a
vehicle in which the tow truck is summoned because of a traffic
accident or to an incident.
(6) "Nonconsent tow" means any tow of a motor vehicle
that is not a consent tow, including:
(A) an incident management tow; and
(B) a private property tow.
(7-a) "Parking facility authorized agent" means an
employee or agent of a parking facility owner with the authority to:
(A) authorize the removal of a vehicle from the
parking facility on behalf of the parking facility owner; and
(B) accept service on behalf of the parking
facility owner of a notice of hearing requested under this chapter.
(8) "Parking facility owner" means:
(A) an individual, corporation, partnership,
limited partnership, limited liability company, association,
trust, or other legal entity owning or operating [owner or operator
of] a parking facility[, including a lessee, employee, or agent of
an owner or operator];
(B) a property owners' association having
control under a dedicatory instrument, as that term is defined in
Section 202.001, Property Code, over assigned or unassigned parking
areas; or
(C) a property owner having an exclusive right
under a dedicatory instrument, as that term is defined in Section
202.001, Property Code, to use a parking space.
(8-a) "Private property tow" means any tow of a
vehicle authorized by a parking facility owner without the consent
of the owner or operator of the vehicle.
SECTION 2. Subsection (a), Section 2308.057, Occupations
Code, is amended to read as follows:
(a) The commission shall adopt rules for permitting tow
trucks and licensing towing operators and towing companies,
including rules for denial of applications and permits if the
applicant, a partner, principal, officer, or general manager of the
applicant, or other license or permit holder has:
(1) a criminal conviction, or has pleaded guilty or
nolo contendere to an offense, before the date of the application,
for:
(A) a felony; or
(B) a misdemeanor punishable by confinement in
jail or by a fine in an amount that exceeds $500;
(2) violated an order of the commission or executive
director, including an order for sanctions or administrative
penalties;
(3) failed to submit a license or permit bond in an
amount established by the commission;
(4) knowingly submitted false or incomplete
information on the application; or
(5) filed an application to permit a tow truck
previously permitted by a license or permit holder.
SECTION 3. Subchapter B, Chapter 2308, Occupations Code, is
amended by adding Section 2308.0575 to read as follows:
Sec. 2308.0575. RULES ON FEES; CONTRACT FOR STUDY;
CONFIDENTIAL INFORMATION. (a) To protect the public health and
safety, the commission by rule shall establish:
(1) the fees that may be charged in connection with a
private property tow;
(2) the maximum amount that may be charged for fees,
other than tow fees, that may be assessed by a towing company in
connection with a private property tow; and
(3) a maximum amount that may be charged for the
following private property tows:
(A) standard light-duty tows of motor vehicles
with a gross weight rating of 10,000 pounds or less;
(B) medium-duty tows of motor vehicles with a
gross weight rating of more than 10,000 pounds, but less than 25,000
pounds; and
(C) heavy-duty tows of motor vehicles with a
gross weight rating that exceeds 25,000 pounds.
(b) In adopting rules under Subsection (a), the commission
shall contract for the conduct of a study that:
(1) examines private property towing fee studies
conducted by municipalities in this state; and
(2) analyzes for private property tows the cost of
services by company, the consumer price index, the geographic area,
and individual cost components.
(c) The commission may structure the maximum amounts that
may be charged for private property tows based on hourly or flat
fees or by geographic location.
(d) The commission shall maintain the confidentiality of
information contained in a study conducted under this section that
is claimed to be confidential for competitive purposes and may not
release information that identifies a person or company. The
confidential information is exempt from disclosure under Chapter
552, Government Code.
(e) To protect the confidentiality of the information, the
commission shall aggregate the information to the maximum extent
possible considering the purpose of the study.
(f) The department shall contract to conduct a study on
private property towing fees under this section at least once every
two years.
SECTION 4. Section 2308.060, Occupations Code, is amended
to read as follows:
Sec. 2308.060. POWERS AND DUTIES OF ADVISORY BOARD. The
advisory board shall provide advice and recommendations to the
department on technical matters relevant to the administration and
enforcement of this chapter, including examination content,
licensing standards, [and] continuing education requirements, and
maximum amounts that may be charged for fees related to private
property tows.
SECTION 5. Section 2308.204, Occupations Code, is amended
to read as follows:
Sec. 2308.204. FEES FOR NONCONSENT TOWS IN OTHER AREAS.
[(a)] In an area in which no political subdivision regulates the
fees that may be charged or collected in connection with [for] a
private property [nonconsent] tow [from private property], a towing
company may charge and collect fees [a fee] for the tow of a motor
vehicle [from private property] in an amount not to exceed the
maximum amount authorized by commission rule [an amount equal to
150 percent of the fee that the towing company would have been
authorized to charge for a nonconsent tow made at the request of a
peace officer of the political subdivision in which the private
property is located].
[(b) A towing company may charge and collect a fee for the
tow of a vehicle, with a gross vehicle weight rating in excess of
26,000 pounds, from private property in an amount not to exceed an
amount equal to 125 percent of the fee that the towing company would
have been authorized to charge for a nonconsent tow made at the
request of a peace officer of the political subdivision in which the
private property is located.]
SECTION 6. Section 2308.206, Occupations Code, is amended
by adding Subsections (f) and (g) to read as follows:
(f) A license or permit holder may not charge a fee related
to a nonconsent tow that is not listed in the schedule most recently
submitted to the department under this section.
(g) The department may require a license or permit holder
that has violated Subsection (e) or (f) to reimburse the vehicle
owner or operator for the charges.
SECTION 7. Section 2308.208, Occupations Code, is amended
to read as follows:
Sec. 2308.208. MUNICIPAL ORDINANCE REGULATING UNAUTHORIZED
VEHICLES AND TOWING OF MOTOR VEHICLES. A municipality may adopt an
ordinance that is identical to this chapter or that imposes
additional requirements that exceed the minimum standards of this
chapter but may not adopt an ordinance conflicting with this
chapter.
SECTION 8. Subsection (a), Section 2308.252, Occupations
Code, is amended to read as follows:
(a) A parking facility owner may, without the consent of the
owner or operator of an unauthorized vehicle, cause the vehicle and
any property on or in the vehicle to be removed and stored at a
vehicle storage facility at the vehicle owner's or operator's
expense if:
(1) signs that comply with Subchapter G prohibiting
unauthorized vehicles are located on the parking facility at the
time of towing and for the preceding 24 hours and remain installed
at the time of towing;
(2) the owner or operator of the vehicle has received
actual notice from the parking facility owner that the vehicle will
be towed at the vehicle owner's or operator's expense if it is in or
not removed from an unauthorized space;
(3) the parking facility owner gives notice to the
owner or operator of the vehicle under Subsection (b); or
(4) the parking facility owner has provided to the
towing company written notice of the name of the parking facility
authorized agent and the vehicle is:
(A) left in violation of Section 2308.251 or
2308.253; or
(B) in or obstructing a portion of a paved
driveway or abutting public roadway used for entering or exiting
the facility.
SECTION 9. Subsection (a), Section 2308.255, Occupations
Code, is amended to read as follows:
(a) A towing company that is insured as provided by
Subsection (c) may, without the consent of an owner or operator of
an unauthorized vehicle, remove and store the vehicle at a vehicle
storage facility at the expense of the owner or operator of the
vehicle if:
(1) the towing company has received written
verification from the parking facility owner that:
(A) the parking facility owner has installed the
signs required by Section 2308.252(a)(1); or
(B) the owner or operator received notice under
Section 2308.252(a)(2) or the parking facility owner gave notice
complying with Section 2308.252(a)(3); or
(2) the parking facility owner has provided to the
towing company written notice of the name of the parking facility
authorized agent and the vehicle is:
(A) left in violation of Section 2308.251; or
(B) in or obstructing a portion of a paved
driveway or abutting public roadway used for entering or exiting
the facility and the removal is approved by a peace officer.
SECTION 10. Subsection (a), Section 2308.256, Occupations
Code, is amended to read as follows:
(a) A vehicle storage facility accepting a vehicle that is
towed under this chapter shall within two hours after receiving the
vehicle report to the police department of the municipality from
[in] which the vehicle was towed [parking facility is located], or,
if the vehicle was towed from a location that [parking facility] is
not [located] in a municipality with [having] a police department,
to the sheriff of the county from [in] which the vehicle was towed
[parking facility is located]:
(1) a general description of the vehicle;
(2) the state and number of the vehicle's license
plate, if any;
(3) the vehicle identification number of the vehicle,
if it can be ascertained;
(4) the location from which the vehicle was towed; and
(5) the name and location of the vehicle storage
facility where the vehicle is being stored.
SECTION 11. Subsection (c), Section 2308.404, Occupations
Code, is amended to read as follows:
(c) A towing company or parking facility owner who
intentionally, knowingly, or recklessly violates this chapter is
liable to the owner or operator of the vehicle that is the subject
of the violation for $1,000 [$300] plus three times the amount of
fees assessed in the vehicle's removal, towing, or storage.
SECTION 12. Section 2308.405, Occupations Code, is amended
to read as follows:
Sec. 2308.405. CRIMINAL PENALTY [VIOLATION OF CHAPTER;
FINE]. A person commits an offense if the person violates
[violation of] this chapter. An offense under this section is a
misdemeanor punishable by a fine of not less than $500 or more than
$1,500 unless it is shown on trial of the offense that the person
knowingly or intentionally violated this chapter, in which event
the offense is a Class B misdemeanor.
SECTION 13. Section 2308.451, Occupations Code, is amended
by amending Subsection (b) and adding Subsection (c) to read as
follows:
(b) If in a hearing held under this chapter the court does
not find that a person or law enforcement agency authorized, with
probable cause, the removal and storage in a vehicle storage
facility of a vehicle, the parking facility owner [person] or law
enforcement agency that authorized the removal shall:
(1) pay the costs of the removal and storage; or
(2) reimburse the owner or operator for the cost of the
removal and storage paid by the owner or operator.
(c) If, in a hearing held under this chapter, regardless of
whether the court finds that there was probable cause for the
removal and storage of a vehicle, the court finds that the towing
charge collected exceeded fees regulated by a political subdivision
or authorized by this chapter or Chapter 2303, the towing company
shall reimburse the owner or operator of the vehicle an amount equal
to the overcharge.
SECTION 14. Section 2308.454, Occupations Code, is amended
by adding Subsection (c) to read as follows:
(c) If the towing company or vehicle storage facility that
received the payment fails to furnish to the owner or operator of
the vehicle the name, address, and telephone number of the parking
facility owner or law enforcement agency that authorized the
removal of the vehicle, the towing company or vehicle storage
facility that received the payment is liable if the court, after a
hearing, does not find probable cause for the removal and storage of
the vehicle.
SECTION 15. Section 2308.455, Occupations Code, is amended
to read as follows:
Sec. 2308.455. CONTENTS OF NOTICE. The notice under
Section 2308.454 must include:
(1) a statement of:
(A) the person's right to submit a request within
14 days for a court hearing to determine whether probable cause
existed to remove the vehicle;
(B) the information that a request for a hearing
must contain; and
(C) any filing fee for the hearing;
(2) the name, address, and telephone number of the
towing company that removed the vehicle;
(3) the name, address, and telephone number of the
vehicle storage facility in which the vehicle was placed;
(4) the name, street address including city, state,
and zip code, and telephone number of the person, parking facility
[property] owner, or law enforcement agency that authorized the
removal of the vehicle; and
(5) the name, address, and telephone number of the
justice court having jurisdiction in the precinct in which the
vehicle storage facility is located.
SECTION 16. Section 2308.456, Occupations Code, is amended
by amending Subsection (a) and adding Subsection (c-1) to read as
follows:
(a) Except as provided by Subsections [Subsection] (c) and
(c-1), a person entitled to a hearing under this chapter must
deliver a written request for the hearing to the court before the
14th day after the date the vehicle was removed and placed in the
vehicle storage facility, excluding Saturdays, Sundays, and legal
holidays.
(c-1) The 14-day period for requesting a hearing under
Subsection (a) does not begin until the date on which the towing
company or vehicle storage facility provides to the vehicle owner
or operator the information necessary for the vehicle owner or
operator to complete the material for the request for hearing
required under Subsections (b)(2)-(6).
SECTION 17. Subsections (a) and (b), Section 2308.458,
Occupations Code, are amended to read as follows:
(a) A hearing under this chapter shall be held before the
21st calendar [14th working] day after the date the court receives
the request for the hearing.
(b) The court shall notify the person who requested the
hearing, the parking facility owner [person] or law enforcement
agency that authorized the removal of the vehicle, and the vehicle
storage facility in which the vehicle was placed of the date, time,
and place of the hearing in a manner provided by Rule 21a, Texas
Rules of Civil Procedure. The notice of the hearing to the parking
facility owner [person] or law enforcement agency that authorized
the removal of the vehicle shall include a copy of the request for
hearing.
SECTION 18. Section 2308.460, Occupations Code, is amended
to read as follows:
Sec. 2308.460. ENFORCEMENT OF AWARD. (a) An award under
this chapter may be enforced by any means available for the
enforcement of a judgment for a debt.
(b) The department shall suspend a license holder's license
on the license holder's failure to pay a final judgment awarded to
an owner or operator of a vehicle before the 60th day after the date
of the final judgment.
(c) The owner or operator of the vehicle shall submit a
certified copy of the final judgment to the department.
(d) On receipt of the certified copy of the unpaid final
judgment, the department shall disqualify a person from renewing a
license or permit or deny the person the opportunity of taking a
licensing examination on the grounds that the person, towing
company, or vehicle storage facility has not paid a final judgment
awarded to an owner or operator of a vehicle.
(e) The department shall reinstate the license on
submission of evidence satisfactory to the department of payment of
the final judgment by the person, towing company, or vehicle
storage facility.
SECTION 19. Subsection (a), Section 2303.159, Occupations
Code, is amended to read as follows:
(a) The operator of a vehicle storage facility shall accept
payment by an electronic check, debit card, or credit card for any
charge associated with delivery or storage of a vehicle. Except as
provided by this subsection, the operator of a vehicle storage
facility may not collect a fee for any charge associated with
delivery or storage of a vehicle from a person who offers to pay the
charge with an electronic check, debit card, or credit card form of
payment that the operator is not equipped to accept. This
subsection does not apply if the operator, through no fault of the
operator, is unable to accept the electronic check, debit card, or
credit card because of a power outage or a machine malfunction.
SECTION 20. Not later than April 1, 2010, the Texas
Commission of Licensing and Regulation shall adopt the rules
necessary to implement the changes in law made by this Act,
including rules on the maximum amount of fees that may be charged
for private property tows.
SECTION 21. (a) The change in law made by this Act to
Section 2308.405, Occupations Code, applies only to an offense
committed on or after the effective date of this Act. For purposes
of this section, an offense is committed before the effective date
of this Act if any element of the offense occurs before that date.
(b) An offense committed before the effective date of this
Act is covered by the law in effect when the offense was committed,
and the former law is continued in effect for that purpose.
SECTION 22. (a) Except as provided by Subsection (b) of
this section, this Act takes effect September 1, 2009.
(b) Section 2308.204, Occupations Code, as amended by this
Act, takes effect May 1, 2010.
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