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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