82R19977 SLB-F

By: Hamilton H.B. No. 3510

Substitute the following for H.B. No. 3510:

By: Quintanilla C.S.H.B. No. 3510

A BILL TO BE ENTITLED

AN ACT

relating to the regulation of the towing, booting, and storage of vehicles.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 2303.1511, Occupations Code, is amended by adding Subsection (c) to read as follows:

(c) This section does not apply to a vehicle received as a result of an incident management tow requested by a law enforcement agency unless the law enforcement agency requests a report of incident management tows within the jurisdiction of the agency. In this subsection, "incident management tow" has the meaning assigned by Section 2308.002.

SECTION 2. Section 2303.154(a), Occupations Code, is amended to read as follows:

(a) If a vehicle is not claimed by a person permitted to claim the vehicle or [is not taken into custody by] a law enforcement agency has not taken an action in response to a notice under Section 683.031(c) [Chapter 683], Transportation Code, before the 15th [41st] day after the date notice is mailed or published under Section 2303.151 or 2303.152, the vehicle is considered abandoned and the operator of the vehicle storage facility shall send a second notice to the registered owner and the primary lienholder of the vehicle in compliance with the requirements of Section 683.012, Transportation Code, for a notice sent by a law enforcement agency.

SECTION 3. Section 2303.160(c), Occupations Code, is amended to read as follows:

(c) Subsection (b) does not require a vehicle storage facility to release a vehicle to the owner or operator of the vehicle if the owner or operator of the vehicle does not:

(1) pay the charges for services regulated under this chapter or Chapter 2308, including charges for an incident management tow, as defined by Section 2308.002 [associated with delivery or storage of the vehicle]; and

(2) present valid photo identification issued by this state, another state, [or] a federal agency, or a foreign government.

SECTION 4. Sections 2308.002(5-a) and (7), Occupations Code, are amended to read as follows:

(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, including the removal of a vehicle, cargo, and debris from an accident or incident scene.

(7) "Parking facility" means public or private property used, wholly or partly, for restricted or paid vehicle parking. The term includes:

(A) a restricted space on a portion of an otherwise unrestricted parking facility; and

(B) a commercial parking lot, a parking garage, and a parking area serving or adjacent to a business, church, school, home that charges a fee for parking, apartment complex, property governed by a property owners' association, or government-owned property leased to a private person, including:

(i) a portion of the right-of-way of a public roadway that is leased by a governmental entity to the parking facility owner; and

(ii) the area between the facility's property line abutting a county or municipal public roadway and the center line of the roadway's drainage way or the curb of the roadway, whichever is farther from the facility's property line.

SECTION 5. Section 2308.057, Occupations Code, is amended to read as follows:

Sec. 2308.057. RULES. (a) The commission shall adopt rules for permitting tow trucks and licensing towing operators, towing companies, booting companies, and boot operators. The commission may adopt different rules applicable to each type of permit or license.

(a-1) The commission shall adopt [, 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.

(b) The commission by rule shall adopt:

(1) standards of conduct for license and permit holders under this chapter; and

(2) requirements for a consent tow, private property tow, and incident management tow.

SECTION 6. Section 2308.158, Occupations Code, is amended to read as follows:

Sec. 2308.158. [ALCOHOL AND] DRUG TESTING OF TOWING OPERATORS. (a) A towing company shall establish a [an alcohol and] drug testing policy for towing operators. A towing company that establishes a [an alcohol and] drug testing policy under this subsection may adopt the model [alcohol and] drug testing policy adopted by the commission or may use another [alcohol and] drug testing policy that the department determines is at least as stringent as the policy adopted by the commission.

(b) The commission by rule shall adopt a model [alcohol and] drug testing policy for use by a towing company. The model [alcohol and] drug testing policy must be designed to ensure the safety of the public through appropriate [alcohol and] drug testing and to protect the rights of employees. The model [alcohol and] drug testing policy must:

(1) require at least one scheduled drug test each year for each towing operator; and

(2) authorize random, unannounced [alcohol and] drug testing for towing operators.

SECTION 7. Section 2308.159(c), Occupations Code, is amended to read as follows:

(c) A license holder may renew a license issued under this chapter by:

(1) submitting an application on a form prescribed by the executive director;

(2) submitting evidence demonstrating compliance with the requirements for the license type as required by this chapter or commission rule;

(3) paying a renewal fee; and

(4) [(2)] completing continuing education as required by Section 2308.157.

SECTION 8. Subchapter E, Chapter 2308, Occupations Code, is amended by adding Section 2308.2065 to read as follows:

Sec. 2308.2065. FEES FOR PRIVATE PROPERTY TOWS; REFUNDS. (a) A license or permit holder may not charge a fee for a private property tow that is greater than:

(1) the fee for a private property tow established under Section 2308.0575; or

(2) a fee for a private property tow authorized by a political subdivision.

(b) A license or permit holder may not charge a fee for a service related to a private property tow that is not included in the list of fees established:

(1) under Section 2308.0575; or

(2) by a political subdivision.

(c) The department may require a license or permit holder to refund to a vehicle owner or operator the:

(1) amount charged to the owner or operator in excess of the amounts established by commission rule or by a political subdivision; or

(2) total amount of the charges for a service not listed in the amounts established by commission rule or by a political subdivision.

SECTION 9. Section 2308.252(a), 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 substantially 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) on request the parking facility owner provides to the owner or operator of the vehicle information on the name of the towing company and vehicle storage facility that will be used to remove and store the vehicle 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 10. Subchapter F, Chapter 2308, Occupations Code, is amended by adding Section 2308.2545 to read as follows:

Sec. 2308.2545. AUTHORITY TO REMOVE VEHICLE FROM HOME. (a) A homeowner or tenant under a written lease agreement who does not charge for parking may authorize the removal of an unauthorized vehicle if the vehicle is blocking entry to or exit from the home or the driveway of the home.

(b) Sections 2308.252 and 2308.253 do not apply to a removal authorized under this section.

SECTION 11. The heading to Section 2308.255, Occupations Code, is amended to read as follows:

Sec. 2308.255. TOWING COMPANY'S OR BOOT OPERATOR'S AUTHORITY TO REMOVE AND STORE OR BOOT UNAUTHORIZED VEHICLE.

SECTION 12. Sections 2308.255(a) and (d), Occupations Code, are 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) on request the parking facility owner provides to the owner or operator of the vehicle information on the name of the towing company and vehicle storage facility that will be used to remove and store the vehicle and the vehicle is:

(A) left in violation of Section 2308.251; [or]

(B) in or obstructing a portion of a paved driveway; or

(C) on a [abutting] public roadway used for entering or exiting the facility and the removal is approved by a peace officer.

(d) A towing company may remove and store a vehicle under Subsection (a) and a boot operator may boot a vehicle under Section 2308.257 only if the parking facility owner:

(1) requests that the towing company remove and store or that the boot operator boot the specific vehicle; or

(2) has a standing written agreement with the towing company or boot operator to enforce parking restrictions in the parking facility [from which the vehicle will be removed].

SECTION 13. Section 2308.257, Occupations Code, as added by Chapter 757 (S.B. 702), Acts of the 81st Legislature, Regular Session, 2009, is redesignated as Section 2308.2555, Occupations Code, to read as follows:

Sec. 2308.2555 [2308.257]. REMOVAL OF CERTAIN UNAUTHORIZED VEHICLES IN RURAL AREAS. (a) This section applies only to an abandoned vehicle that has damaged a fence on private property in a rural area.

(b) A law enforcement agency directing a towing company or tow operator to remove an abandoned vehicle that is located on private property shall provide the towing company or tow operator with the name and telephone number of the property owner or the owner's agent if the owner or agent has provided the information to the law enforcement agency.

(c) A towing company or tow operator provided with information under Subsection (b) shall contact the property owner or the owner's agent before entering private property to tow a vehicle described by Subsection (a).

SECTION 14. Subchapter F, Chapter 2308, Occupations Code, is amended by adding Section 2308.2565 to read as follows:

Sec. 2308.2565. VEHICLE STORAGE FACILITY DUTY TO REPORT AFTER ACCEPTING UNAUTHORIZED VEHICLE. (a) Except for an incident management tow requested by a law enforcement agency, 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 which the vehicle was towed or, if the vehicle was towed from a location that is not in a municipality with a police department, to the sheriff of the county from which the vehicle was towed:

(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 in which the vehicle is being stored.

(b) A law enforcement agency may request a report, in a manner prescribed by the law enforcement agency, of incident management tows within the jurisdiction of the agency.

SECTION 15. Section 2308.301(b), Occupations Code, is amended to read as follows:

(b) Except as provided by Section 2308.305, an unauthorized vehicle may be towed under Section 2308.252(a)(1) or booted under Section 2308.257 only if each sign prohibiting unauthorized vehicles:

(1) is made of weather-resistant material;

(2) is at least 18 inches wide and 24 inches tall;

(3) contains the international symbol for towing vehicles;

(4) contains a statement describing who may park in the parking facility and prohibiting all others;

(5) 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";

(6) contains a statement of the days and hours of towing and booting enforcement; and

(7) contains a number, including the area code, of a telephone that is answered 24 hours a day to enable an owner or operator of a vehicle to locate a towed vehicle or to arrange for removal of a boot from a vehicle.

SECTION 16. Section 2308.302(c), Occupations Code, is amended to read as follows:

(c) The portion of the sign immediately below the international towing symbol must:

(1) [contain the words "Towing And Booting Enforced"] in lettering at least two inches in height, contain the words, as applicable:

(A) "Towing and Booting Enforced";

(B) "Towing Enforced"; or

(C) "Booting Enforced"; and

(2) [. The lettering on this portion of the sign must] consist of white letters on a bright red background.

SECTION 17. Section 2308.401, Occupations Code, is amended by adding Subsection (c) to read as follows:

(c) This section does not apply to a sign required under Section 2308.301 provided by a towing or booting company to a parking facility owner.

SECTION 18. Section 2308.402, Occupations Code, is amended by adding Subsection (c) to read as follows:

(c) This section does not apply to a sign required under Section 2308.301 provided by a towing or booting company to a parking facility owner.

SECTION 19. Section 2308.451(a), Occupations Code, is amended to read as follows:

(a) If in a hearing held under this chapter the court finds that a person or law enforcement agency authorized, with probable cause, the removal and storage in a vehicle storage facility of a vehicle, the person who requested the hearing shall pay the costs of the removal and storage, court costs, and, at the discretion of the court, attorney's fees.

SECTION 20. Section 2308.451(c), Occupations Code, as added by Chapter 845 (S.B. 2153), Acts of the 81st Legislature, Regular Session, 2009, is amended to read as follows:

(c) If in a hearing held under this chapter the court finds that a person authorized, with probable cause, the booting of a vehicle in a parking facility, the person who requested the hearing shall pay the costs of the booting, court costs, and, at the discretion of the court, attorney's fees.

SECTION 21. Section 2308.453, Occupations Code, as amended by Chapters 845 (S.B. 2153) and 1310 (H.B. 2571), Acts of the 81st Legislature, Regular Session, 2009, is reenacted and amended to read as follows:

Sec. 2308.453. JURISDICTION. A hearing under this chapter shall be in the justice court having jurisdiction in:

(1) the precinct in which the vehicle storage facility is located [from which the motor vehicle was towed]; or

(2) for booted vehicles, the precinct in which the parking facility is located.

SECTION 22. The heading to Section 2308.455, Occupations Code, is amended to read as follows:

Sec. 2308.455. CONTENTS OF NOTICE FOR NONCONSENT TOWS.

SECTION 23. Sections 2308.458(b), (c), and (e), Occupations Code, are amended to read as follows:

(b) The court shall notify the person who requested the hearing for a towed vehicle, the parking facility owner or law enforcement agency that authorized the removal of the vehicle, the towing company, 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 towing company and the parking facility owner or law enforcement agency that authorized the removal of the vehicle must include a copy of the request for hearing. Notice to the law enforcement agency that authorized the removal of the vehicle is sufficient as notice to the political subdivision in which the law enforcement agency is located.

(c) The issues in a hearing regarding a towed vehicle under this chapter are:

(1) whether probable cause existed for the removal and placement of the vehicle;

(2) whether a towing charge imposed or collected in connection with the removal or placement of the vehicle was greater than the amount authorized by the political subdivision under Section 2308.201 or 2308.202;

(3) whether a towing charge imposed or collected in connection with the removal or placement of the vehicle was greater than the amount authorized under Section 2308.203 or 2308.204; or

(4) whether a towing charge imposed or collected in connection with the removal or placement of the vehicle was greater than the amount authorized [filed with the department] under Section 2308.206.

(e) The court may award:

(1) court costs and attorney's fees to the prevailing party;

(2) the reasonable cost of photographs submitted under Section 2308.456(b)(8) to a vehicle owner or operator who is the prevailing party;

(3) an amount equal to the amount that the towing charge or booting removal charge and associated parking fees exceeded fees regulated by a political subdivision or authorized by this code or by Chapter 2303; and

(4) reimbursement of fees paid for vehicle towing, storage, or removal of a boot.

SECTION 24. Section 2308.459, Occupations Code, is amended to read as follows:

Sec. 2308.459. APPEAL. (a) An appeal from a hearing under this chapter is governed by the rules of procedure applicable to civil cases in justice court, except that no appeal bond may be required by the court.

(b) Failure of a party to participate in a hearing under Section 2308.458 constitutes waiver of the party's right to appeal to a higher court.

SECTION 25. Section 2308.504(b), Occupations Code, is amended to read as follows:

(b) An offense under this section is a Class C misdemeanor. An offense under this section is enforceable by law enforcement.

SECTION 26. Section 2308.505(b), Occupations Code, is amended to read as follows:

(b) An offense under this section is a misdemeanor punishable by a fine of not less than $200 or more than $1,000 per violation. An offense under this section is enforceable by law enforcement.

SECTION 27. (a) The following sections of the Occupations Code are repealed:

(1) Section 2303.154(a-1);

(2) Section 2308.204;

(3) Section 2308.206; and

(4) Section 2308.404(d).

(b) Section 2308.256(a), Occupations Code, as amended by Chapter 1310 (H.B. 2571), Acts of the 81st Legislature, Regular Session, 2009, is repealed to conform to the repeal of Section 2308.256, Occupations Code, by Chapter 757 (S.B. 702), Acts of the 81st Legislature, Regular Session, 2009.

SECTION 28. (a) The change in law made by this Act to Section 2308.159, Occupations Code, applies only to an application for renewal of a license made on or after September 1, 2011.

(b) An application for renewal of a license made before September 1, 2011, is governed by the law as it existed immediately before September 1, 2011, and that law is continued in effect for that purpose.

(c) The Texas Commission of Licensing and Regulation shall adopt rules to implement the changes in law made by this Act to Chapters 2303 and 2308, Occupations Code, not later than January 1, 2012.

(d) The changes in law made by Section 2303.154, Occupations Code, as amended by this Act, apply to a vehicle accepted by a vehicle storage facility on or after the effective date of this Act. A vehicle accepted before the effective date of this Act is governed by the law in effect at the time the vehicle was accepted, and the former law is continued in effect for that purpose.

(e) The changes in law made by Sections 2308.451, 2308.453, 2308.455, and 2308.459, Occupations Code, as amended by this Act, apply to a hearing based on a petition filed on or after the effective date of this Act. A hearing based on a petition filed before the effective date of this Act is governed by the law in effect on the date the petition was filed, and the former law is continued in effect for that purpose.

SECTION 29. To the extent of any conflict, this Act prevails over another Act of the 82nd Legislature, Regular Session, 2011, relating to nonsubstantive additions to and corrections in enacted codes.

SECTION 30. This Act takes effect September 1, 2011.