Texas 2009 - 81st Regular

Texas Senate Bill SB1431 Compare Versions

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1	1	81R31859 YDB-D
2	2	By: Hinojosa, et al. S.B. No. 1431
3	3	Substitute the following for S.B. No. 1431:
4	4	By: Pickett C.S.S.B. No. 1431
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the licensing and regulation of towing companies and
10	10	vehicle storage facilities; providing penalties.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 2308.002, Occupations Code, is amended
13	13	by amending Subdivisions (3), (6), and (8) and adding Subdivisions
14	14	(5-a) and (8-a) to read as follows:
15	15	(3) "Consent tow" means any tow of a motor vehicle in
16	16	which the tow truck is summoned [initiated] by the owner or operator
17	17	of the vehicle or by a person who has possession, custody, or
18	18	control of the vehicle. The term does not include an incident
19	19	management tow or a private property [a] tow [of a motor vehicle
20	20	initiated by a peace officer investigating a traffic accident or a
21	21	traffic incident that involves the vehicle].
22	22	(5-a) "Incident management tow" means any tow of a
23	23	vehicle in which the tow truck is summoned to a traffic accident or
24	24	incident.
25	25	(6) "Nonconsent tow" means any tow of a motor vehicle
26	26	that is not a consent tow, including:
27	27	(A) an incident management tow; and
28	28	(B) a private property tow.
29	29	(8) "Parking facility owner" means:
30	30	(A) an individual, corporation, partnership,
31	31	limited partnership, limited liability company, association,
32	32	trust, or other legal entity owning or operating [owner or operator
33	33	of] a parking facility[, including a lessee, employee, or agent of
34	34	an owner or operator];
35	35	(B) a property owners' association having
36	36	control under a dedicatory instrument, as that term is defined in
37	37	Section 202.001, Property Code, over assigned or unassigned parking
38	38	areas; or
39	39	(C) a property owner having an exclusive right
40	40	under a dedicatory instrument, as that term is defined in Section
41	41	202.001, Property Code, to use a parking space.
42	42	(8-a) "Private property tow" means any tow of a
43	43	vehicle authorized by a parking facility owner without consent of
44	44	the vehicle owner or operator.
45	45	SECTION 2. Section 2308.057(a), Occupations Code, is
46	46	amended to read as follows:
47	47	(a) The commission shall adopt rules for permitting tow
48	48	trucks and licensing towing operators and towing companies,
49	49	including rules for denial of an application or permit if the
50	50	applicant, a partner, principal, officer, or general manager of the
51	51	applicant, or a license or permit holder has:
52	52	(1) a criminal conviction or has pled guilty or nolo
53	53	contendere before the date of the application for:
54	54	(A) a felony; or
55	55	(B) a misdemeanor punishable by confinement in
56	56	jail or by a fine exceeding $500;
57	57	(2) violated an order of the commission or executive
58	58	director, including an order for sanctions or administrative
59	59	penalties;
60	60	(3) failed to submit a license or permit bond in an
61	61	amount established by the commission;
62	62	(4) knowingly submitted false or incomplete
63	63	information on a license or permit application; or
64	64	(5) filed an application to permit a tow truck that is
65	65	already permitted by another license or permit holder.
66	66	SECTION 3. Subchapter B, Chapter 2308, Occupations Code, is
67	67	amended by adding Section 2308.0575 to read as follows:
68	68	Sec. 2308.0575. RULES ON FEES; CONTRACT FOR STUDY;
69	69	CONFIDENTIAL INFORMATION. (a) To protect the public health and
70	70	safety, the commission by rule shall establish:
71	71	(1) the fees that may be charged in connection with a
72	72	private property tow;
73	73	(2) the maximum amount that may be charged for fees,
74	74	other than tow fees, that may be assessed by a towing company in
75	75	connection with a private property tow; and
76	76	(3) a maximum amount that may be charged for the
77	77	following private property tows:
78	78	(A) standard light-duty tows of motor vehicles
79	79	with a gross weight rating of 10,000 pounds or less;
80	80	(B) medium-duty tows of motor vehicles with a
81	81	gross weight rating of more than 10,000 pounds, but less than 25,000
82	82	pounds; and
83	83	(C) heavy-duty tows of motor vehicles with a
84	84	gross weight rating that exceeds 25,000 pounds.
85	85	(b) In adopting rules under Subsection (a), the commission
86	86	shall contract:
87	87	(1) for the conduct of a study that examines
88	88	nonconsent towing fee studies conducted by municipalities in this
89	89	state; and
90	90	(2) at least once every two years, for the conduct of a
91	91	study that analyzes, for private property tows, the cost of service
92	92	by company, the consumer price index, the geographic area, and
93	93	individual cost components.
94	94	(c) The commission may structure the maximum amounts that
95	95	may be charged for private property tows based on hourly or flat
96	96	fees or by geographic location.
97	97	(d) The commission shall maintain the confidentiality of
98	98	information contained in a study conducted under this section that
99	99	is claimed to be confidential for competitive purposes and may not
100	100	release information that identifies a person or company. The
101	101	confidential information is exempt from disclosure under Chapter
102	102	552, Government Code.
103	103	(e) To protect the confidentiality of the information, the
104	104	commission shall aggregate the information to the maximum extent
105	105	possible considering the purpose of the study.
106	106	SECTION 4. Section 2308.060, Occupations Code, is amended
107	107	to read as follows:
108	108	Sec. 2308.060. POWERS AND DUTIES OF ADVISORY BOARD. The
109	109	advisory board shall provide advice and recommendations to the
110	110	department on technical matters relevant to the administration and
111	111	enforcement of this chapter, including examination content,
112	112	licensing standards, [and] continuing education requirements, and
113	113	maximum amounts that may be charged for fees related to private
114	114	property tows.
115	115	SECTION 5. Section 2308.202, Occupations Code, is amended
116	116	to read as follows:
117	117	Sec. 2308.202. REGULATION BY POLITICAL SUBDIVISIONS OF FEES
118	118	FOR CERTAIN [NONCONSENT] TOWS. The governing body of a political
119	119	subdivision may regulate the fees that may be charged or collected
120	120	in connection with:
121	121	(1) an incident management [a nonconsent] tow
122	122	originating in the territory of the political subdivision; and
123	123	(2) a private property tow originating in the
124	124	territory of the political subdivision, provided the fees do not
125	125	exceed the maximum rate authorized under Section 2308.0575.
126	126	SECTION 6. Section 2308.204, Occupations Code, is amended
127	127	to read as follows:
128	128	Sec. 2308.204. FEES FOR PRIVATE PROPERTY [NONCONSENT] TOWS
129	129	IN OTHER AREAS. [(a)] In an area in which no political subdivision
130	130	regulates the fees that may be charged or collected in connection
131	131	with [for] a private property [nonconsent] tow [from private
132	132	property], a towing company may charge and collect fees [a fee] for
133	133	the tow of a motor vehicle [from private property] in an amount not
134	134	to exceed the maximum amount authorized by commission rule for
135	135	private property tows [an amount equal to 150 percent of the fee
136	136	that the towing company would have been authorized to charge for a
137	137	nonconsent tow made at the request of a peace officer of the
138	138	political subdivision in which the private property is located].
139	139	[(b) A towing company may charge and collect a fee for the
140	140	tow of a vehicle, with a gross vehicle weight rating in excess of
141	141	26,000 pounds, from private property in an amount not to exceed an
142	142	amount equal to 125 percent of the fee that the towing company would
143	143	have been authorized to charge for a nonconsent tow made at the
144	144	request of a peace officer of the political subdivision in which the
145	145	private property is located.]
146	146	SECTION 7. Section 2308.206, Occupations Code, is amended
147	147	by adding Subsections (f) and (g) to read as follows:
148	148	(f) A license or permit holder may not charge a fee related
149	149	to a nonconsent tow that is not listed in the schedule most recently
150	150	submitted to the department under this section.
151	151	(g) The department may require a license or permit holder
152	152	that has violated Subsection (e) or (f) to reimburse the vehicle
153	153	owner or operator for the charges.
154	154	SECTION 8. The heading to Section 2308.208, Occupations
155	155	Code, is amended to read as follows:
156	156	Sec. 2308.208. MUNICIPAL ORDINANCE REGULATING UNAUTHORIZED
157	157	VEHICLES AND TOWING OF MOTOR VEHICLES.
158	158	SECTION 9. Section 2308.252(a), Occupations Code, is
159	159	amended to read as follows:
160	160	(a) A parking facility owner may, without the consent of the
161	161	owner or operator of an unauthorized vehicle, cause the vehicle and
162	162	any property on or in the vehicle to be removed and stored at a
163	163	vehicle storage facility at the vehicle owner's or operator's
164	164	expense if:
165	165	(1) signs that comply with Subchapter G prohibiting
166	166	unauthorized vehicles are located on the parking facility at the
167	167	time of towing and for the preceding 24 hours and remain installed
168	168	at the time of towing;
169	169	(2) the owner or operator of the vehicle has received
170	170	actual notice from the parking facility owner that the vehicle will
171	171	be towed at the vehicle owner's or operator's expense if it is in or
172	172	not removed from an unauthorized space;
173	173	(3) the parking facility owner gives notice to the
174	174	owner or operator of the vehicle under Subsection (b); or
175	175	(4) on request, the parking facility owner provides to
176	176	the owner or operator of the vehicle information on the name of the
177	177	towing company and vehicle storage facility used to remove and
178	178	store the vehicle and the vehicle is:
179	179	(A) left in violation of Section 2308.251 or
180	180	2308.253; or
181	181	(B) in or obstructing a portion of a paved
182	182	driveway or abutting public roadway used for entering or exiting
183	183	the facility.
184	184	SECTION 10. Section 2308.255(a), Occupations Code, is
185	185	amended to read as follows:
186	186	(a) A towing company that is insured as provided by
187	187	Subsection (c) may, without the consent of an owner or operator of
188	188	an unauthorized vehicle, remove and store the vehicle at a vehicle
189	189	storage facility at the expense of the owner or operator of the
190	190	vehicle if:
191	191	(1) the towing company has received written
192	192	verification from the parking facility owner that:
193	193	(A) the parking facility owner has installed the
194	194	signs required by Section 2308.252(a)(1); or
195	195	(B) the owner or operator received notice under
196	196	Section 2308.252(a)(2) or the parking facility owner gave notice
197	197	complying with Section 2308.252(a)(3); or
198	198	(2) on request, the parking facility owner provides to
199	199	the owner or operator of the vehicle information on the name of the
200	200	towing company and vehicle storage facility used to remove and
201	201	store the vehicle and the vehicle is:
202	202	(A) left in violation of Section 2308.251; or
203	203	(B) in or obstructing a portion of a paved
204	204	driveway or abutting public roadway used for entering or exiting
205	205	the facility and the removal is approved by a peace officer.
206	206	SECTION 11. Section 2308.404(c), Occupations Code, is
207	207	amended to read as follows:
208	208	(c) A towing company or parking facility owner who
209	209	intentionally, knowingly, or recklessly violates this chapter is
210	210	liable to the owner or operator of the vehicle that is the subject
211	211	of the violation for $1,000 [$300] plus three times the amount of
212	212	fees assessed in the vehicle's removal, towing, or storage.
213	213	SECTION 12. Section 2308.405, Occupations Code, is amended
214	214	to read as follows:
215	215	Sec. 2308.405. CRIMINAL PENALTY [VIOLATION OF CHAPTER;
216	216	FINE]. A person commits an offense if the person violates
217	217	[violation of] this chapter. An offense under this section is a
218	218	misdemeanor punishable by a fine of not less than $500 or more than
219	219	$1,500 unless it is shown on trial of the offense that the person
220	220	knowingly or intentionally violated this chapter, in which event
221	221	the offense is a Class B misdemeanor.
222	222	SECTION 13. Section 2308.451(b), Occupations Code, is
223	223	amended to read as follows:
224	224	(b) If in a hearing held under this chapter the court does
225	225	not find that a person or law enforcement agency authorized, with
226	226	probable cause, the removal and storage in a vehicle storage
227	227	facility of a vehicle, the towing company, vehicle storage
228	228	facility, [person] or law enforcement agency that authorized the
229	229	removal shall:
230	230	(1) pay the costs of the removal and storage; or
231	231	(2) reimburse the owner or operator for the cost of the
232	232	removal and storage paid by the owner or operator.
233	233	SECTION 14. Section 2308.453, Occupations Code, is amended
234	234	to read as follows:
235	235	Sec. 2308.453. JURISDICTION. A hearing under this chapter
236	236	shall be in the justice court having jurisdiction in the precinct
237	237	from [in] which the motor vehicle was towed [storage facility is
238	238	located].
239	239	SECTION 15. Section 2308.454, Occupations Code, is amended
240	240	by adding Subsection (c) to read as follows:
241	241	(c) If the towing company or vehicle storage facility that
242	242	received the payment fails to furnish to the owner or operator of
243	243	the vehicle the name, address, and telephone number of the parking
244	244	facility owner or law enforcement agency that authorized the
245	245	removal of the vehicle, the towing company or vehicle storage
246	246	facility that received the payment is liable if the court, after a
247	247	hearing, does not find probable cause for the removal and storage of
248	248	the vehicle.
249	249	SECTION 16. Section 2308.455, Occupations Code, is amended
250	250	to read as follows:
251	251	Sec. 2308.455. CONTENTS OF NOTICE. The notice under
252	252	Section 2308.454 must include:
253	253	(1) a statement of:
254	254	(A) the person's right to submit a request within
255	255	14 days for a court hearing to determine whether probable cause
256	256	existed to remove the vehicle;
257	257	(B) the information that a request for a hearing
258	258	must contain; and
259	259	(C) any filing fee for the hearing;
260	260	(2) the name, address, and telephone number of the
261	261	towing company that removed the vehicle;
262	262	(3) the name, address, and telephone number of the
263	263	vehicle storage facility in which the vehicle was placed;
264	264	(4) the registered name, street address including
265	265	city, state, and zip code, and telephone number of the person,
266	266	parking facility [property] owner, or law enforcement agency that
267	267	authorized the removal of the vehicle; and
268	268	(5) the name, address, and telephone number of the
269	269	justice court having jurisdiction in the precinct in which the
270	270	parking [vehicle storage] facility is located.
271	271	SECTION 17. Section 2308.456, Occupations Code, is amended
272	272	by amending Subsection (a) and adding Subsection (c-1) to read as
273	273	follows:
274	274	(a) Except as provided by Subsections [Subsection] (c) and
275	275	(c-1), a person entitled to a hearing under this chapter must
276	276	deliver a written request for the hearing to the court before the
277	277	14th day after the date the vehicle was removed and placed in the
278	278	vehicle storage facility, excluding Saturdays, Sundays, and legal
279	279	holidays.
280	280	(c-1) The 14-day period for requesting a hearing under
281	281	Subsection (a) does not begin until the date on which the towing
282	282	company or vehicle storage facility provides to the vehicle owner
283	283	or operator the information necessary for the vehicle owner or
284	284	operator to complete the material for the request for hearing
285	285	required under Subsections (b)(2) through (6).
286	286	SECTION 18. Sections 2308.458(a) and (b), Occupations Code,
287	287	are amended to read as follows:
288	288	(a) A hearing under this chapter shall be held before the
289	289	21st calendar [14th working] day after the date the court receives
290	290	the request for the hearing.
291	291	(b) The court shall notify the person who requested the
292	292	hearing, the parking facility owner, the towing company, [person]
293	293	or the law enforcement agency that authorized the removal of the
294	294	vehicle, and the vehicle storage facility in which the vehicle was
295	295	placed of the date, time, and place of the hearing in a manner
296	296	provided by Rule 21a, Texas Rules of Civil Procedure. The notice of
297	297	the hearing to the parking facility owner, the towing company,
298	298	[person] or the law enforcement agency that authorized the removal
299	299	of the vehicle shall include a copy of the request for hearing.
300	300	SECTION 19. Section 2308.460, Occupations Code, is amended
301	301	to read as follows:
302	302	Sec. 2308.460. ENFORCEMENT OF AWARD. (a) An award under
303	303	this chapter may be enforced by any means available for the
304	304	enforcement of a judgment for a debt.
305	305	(b) The department shall suspend a license holder's license
306	306	on the license holder's failure to pay a final judgment awarded to
307	307	an owner or operator of a vehicle before the 60th day after the date
308	308	of the final judgment. The department must provide notice of the
309	309	suspension to the license holder at least 30 days before the date
310	310	the license is suspended.
311	311	(c) The owner or operator of the vehicle shall submit a
312	312	certified copy of the final judgment to the department.
313	313	(d) On receipt of the certified copy of the unpaid final
314	314	judgment, the department shall disqualify a person from renewing a
315	315	license or permit or deny the person the opportunity of taking a
316	316	licensing examination on the grounds that the person, towing
317	317	company, or vehicle storage facility has not paid a final judgment
318	318	awarded to an owner or operator of a vehicle.
319	319	(e) The department shall reinstate the license on
320	320	submission of evidence satisfactory to the department of payment of
321	321	the final judgment by the person, towing company, or vehicle
322	322	storage facility.
323	323	SECTION 20. Section 2303.159(a), Occupations Code, is
324	324	amended to read as follows:
325	325	(a) The operator of a vehicle storage facility shall accept
326	326	payment by an electronic check, debit card, or credit card for any
327	327	charge associated with delivery or storage of a vehicle. The
328	328	operator of a vehicle storage facility may not refuse to release a
329	329	vehicle based on the inability of the facility to accept payment by
330	330	electronic check, debit card, or credit card of a fee or charge
331	331	associated with delivery or storage of the vehicle. This
332	332	subsection does not apply if the operator, through no fault of the
333	333	operator, is unable to accept the electronic check, debit card, or
334	334	credit card because of a power outage or machine malfunction. The
335	335	facility shall conspicuously post a sign that states: "This vehicle
336	336	storage facility must accept payment by an electronic check, credit
337	337	card, or debit card for any fee or charge associated with delivery
338	338	or storage of a vehicle."
339	339	SECTION 21. Not later than September 1, 2010, the Texas
340	340	Commission of Licensing and Regulation shall adopt the rules
341	341	necessary to implement the changes in law made by this Act,
342	342	including rules on the maximum amount of fees that may be charged
343	343	for private property tows.
344	344	SECTION 22. (a) The change in law made by this Act to
345	345	Section 2308.405, Occupations Code, applies only to an offense
346	346	committed on or after the effective date of this Act. For purposes
347	347	of this section, an offense is committed before the effective date
348	348	of this Act if any element of the offense occurs before that date.
349	349	(b) An offense committed before the effective date of this
350	350	Act is covered by the law in effect when the offense was committed,
351	351	and the former law is continued in effect for that purpose.
352	352	SECTION 23. (a) Except as provided by Subsection (b) of
353	353	this section, this Act takes effect September 1, 2009.
354	354	(b) Sections 2308.202 and 2308.204, Occupations Code, as
355	355	amended by this Act, take effect September 1, 2010.