Vehicle Towing and Booting - Proposed Amendments to Administrative Rules

Chapter 86.  Vehicle Towing and Booting Program
Proposal Filed: October 2, 2017 - Published in the Texas Register: October 13, 2017
Deadline for Public Comment: November 13, 2017

Underlined text is new language.

[Strike-thru text] is deleted language.

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 86, §§86.10, 86.450, 86.451, 86.650, 86.705 and 86.800; and proposes the repeal of §§86.212, 86.213, and 86.452, regarding the Vehicle Towing and Booting program.

The Texas Legislature enacted Senate Bill 1501, Senate Bill 2065, and House Bill 2615 during the 85th Legislature, Regular Session (2017). Collectively, these bills eliminate dual licensure and the towing operator training license, as well as the associated fees. They also eliminate risk-based inspections; establish guidelines for towing in an apartment complex; and update the advisory board composition. The proposed amendments and repeals are necessary to implement the legislative changes mandated by these statutes.

The Towing and Storage Advisory Board met on September 22, 2017, to review a draft of these proposed rules and recommended publishing in the Texas Register.

The proposed amendments to §86.10 updates the name of the advisory board, removes the definition of Property Owner's Association and renumbers the section accordingly.

The proposed repeal of §86.212 eliminates dual licensure and its associated requirements.

The proposed repeal of §86.213 eliminates the towing operator training license and its associated requirements.

The proposed amendments to §86.450 removes references to the risk-based inspection schedule.

The proposed amendments to §86.451 removes reference to risk-based inspections.

The proposed repeal of §86.452 eliminates risk-based inspections.

The proposed amendments to §86.650 updates the composition of the advisory board.

The proposed amendments to §86.705 creates rules relating to towing in an apartment complex for repairs or renovations to the parking facility.

The proposed amendments to §86.800 removes dual licensure and tow operator training license fees.

Brian E. Francis, Executive Director, has determined that for the first five-year period the proposed new rules are in effect, the financial impact will be as follows:

Repeal of dual licensure pursuant to § 86.212; § 86.213; and § 86.800 will result in a net loss to the State in revenue of $191,350 in the first year; $208,550 in the second year; $227,300 in the third year; $2476, 800 in the fourth year; and $270,100 in the fifth year.

There is no anticipated fiscal impact on local government costs and revenue.  

Repeal of risk-based inspections and associated requirements pursuant to § 86.450; § 86.451; and § 86.452 will have no effect on state or local government costs and revenue.

The remaining rule amendments relating to § 86.10; §86.650; and §86.705 will have no effect on state or local government costs and revenue.

Mr. Francis also has determined that for each year of the first five-year period the proposed rules are in effect, the public will benefit by the creation of rules in §86.705 relating to an apartment complex’s ability to tow cars to another location within the complex’s parking facility in the event that the facility requires repairs or renovations.

The public will benefit because vehicle owners and operators will no longer have to travel to an off-site Vehicle Storage Facility (VSF) to obtain vehicles towed because of repairs or renovations to the parking facility; will no longer have to pay VSF fees; will have tow fees capped at $50; and cannot be charged for tows necessitated by emergency repairs to the parking facility.

The remaining rules have no effect on the public.

Mr. Francis has determined that for each year of the first five-year period the proposed new rules are in effect, the elimination of dual licensure in §86.212 and the tow operator training license in §86.213 will allow each operator who previously obtained a dual license to save $50 a year on licensing fees.

He has also determined that there may be minimal costs to parking facility owners by the implementation of notice requirements to vehicle owners and operators in § 86.705 and through possible off-sets to towing companies/operators who may only collect a limited tow fee directly from consumers. The tow fee is limited to an amount which cannot exceed 75 percent of the established private property tow fee for these types of tows.

Additionally, although § 86.705 does not impose any costs on tow companies or operators, they could experience decreased revenue because of the above-mentioned cap on towing fees. VSFs may also see decreased revenue because they will no longer receive vehicles towed under this rule.

The effect on small and micro-business is unknown. A decrease in revenue to VSF’s will depend on how many cars, if any, a VSF currently receives after tows from apartment complexes that are performed in furtherance of improvements and repairs.

Additionally, any decrease in revenue to tow companies or operators will depend on whether the tow companies or operators receive any off-sets from apartment complexes to compensate them for costs above 75 percent of the established private property tow fee. It also depends on whether there are contractual agreements between apartment complexes and tow companies/operators to tow within an apartment complex parking facility for a flat fee that does not exceed the cap.

Accordingly, although there might be some decreases in revenues to both VSFs and tow companies/operators, the decrease is speculative and an estimated dollar amount cannot be provided.

Mr. Francis has also determined that there will not be an adverse economic impact on rural communities.  Rural communities do not regulate towing or vehicle storage. 

Since the agency has determined that the rule will have an unknown and speculative adverse economic effect on small and micro business, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

Texas Government Code §2001.0045 requires state agencies to determine if a proposed rule has a fiscal impact that imposes a cost on regulated persons, including another state agency, a special district, or a local government.

Mr. Francis has determined that there is no cost on regulated persons, including another state agency, a special district or a local government by any of the proposed rules amendments and additions.   

Comments on the proposal may be submitted by mail to Pauline Easley, Legal Assistant, General Counsel’s Office, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711; or by facsimile to (512) 475-3032, or electronically to erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

The amendments are proposed under Texas Occupations Code, Chapters 51 and 2308, which authorize the Commission, the Department’s governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapters 51 and 2308.  No other statutes, articles, or codes are affected by the proposal.

§86.10. Definitions. 

The following words and terms, when used in this chapter will have the following meanings, unless the context clearly shows otherwise: 

  • (1) Advisory board--The Towing and [,] Storage [, and Booting] Advisory Board. 
  • (2) - (18 (No change.)
  • [(19) Property owners' association--Has the meaning assigned by §202.001, Property Code.
  • (19) [(20)] Public roadway -- A public street, alley, road, right-of-way, or other public way, including paved and unpaved portions of the right-of-way. 
  • (20) [(21)] Tow truck -- A motor vehicle, including a wrecker, equipped with a mechanical device used to tow, winch, or otherwise move another motor vehicle. The term does not include: 
    • (A) - (F) (No change.)
  • (21) [(22)] Towing company -- An individual, association, corporation, or other legal entity that controls, operates, or directs the operation of one or more tow trucks over a public roadway in this state but does not include a political subdivision of the state. 
  • (22) [(23)] Towing operator -- The person to which the department issued a towing operator license. 
  • (23) [(24)] Unauthorized vehicle -- A vehicle parked, stored, or located on a parking facility without the consent of the parking facility owner. 
  • (24) [(25)] Vehicle -- A device in, on, or by which a person or property may be transported on a public roadway. The term includes an operable or inoperable automobile, truck, motorcycle, recreational vehicle, or trailer but does not include a device moved by human power or used exclusively on a stationary rail or track. 
  • (25) [(26)] Vehicle owner -- A person: 
    • (A) - (E)
  • (26) [(27)] Vehicle storage facility -- A vehicle storage facility, as defined by Texas Occupations Code, §2303.002 that is operated by a person who holds a license issued under Texas Occupations Code, Chapter 2303 to operate the facility. 

§86.450. Inspections--General. 

  • (a) A towing company shall be inspected periodically [, according to a risk-based schedule,] or as a result of a complaint. These inspections are performed to determine compliance with the requirements of the Act and these rules. In addition, the department may make information available to licensees and managers on best practices for risk-reduction techniques. 
  • (b) - (d) (No change.)

§86.451. Periodic Inspections.

  • (a) - (d) (No change.)
  • [(e) Based on the results of the periodic inspection, a towing company may be moved to a risk-based schedule of inspections. The department will notify the owner of the towing company, in writing, if the company becomes subject to the risk-based inspection schedule and the scheduled frequency of inspection.

§86.650. Towing [,and Storage [, and Booting] Advisory Board. 

  • (a) The advisory board consists of the nine [ten] members appointed by the chairman of the commission with the approval of the commission. The nine [ten] members include: 
    • (1) one representative of a towing company operating in a county with a population of less than one-million; 
    • (2) one representative of a towing company operating in a county with a population of one-million or more; 
    • (3) one representative [owner] of a vehicle storage facility located in a county with a population of less than one-million; 
    • (4) one representative [owner] of a vehicle storage facility located in a county with a population of one-million or more; 
    • (5) one peace [law enforcement] officer from a county with a population of less than one-million; 
    • (6) one peace [law enforcement] officer from a county with a population of one-million or more; 
    • (7) one parking facility representative [owner]; 
    • (8) one representative of a member insurer, as defined by Section 462.004, Insurance Code, of the Texas Property and Casualty Insurance Guaranty Association who writes [property and casualty insurers who write] automobile insurance in this state; and 
    • (9) one person who operates both a towing company and a vehicle storage facility. [one member of a booting company; and
    • [(10) one public member.
  • (b) - (g) (No change.) 

86.705. Responsibilities of Towing Company--Standards of Conduct.

  • (a) - (m) (No change.)
  • (n) A vehicle owner or operator may request that the vehicle be taken to another location; 
  • (o) if a parking facility serves an apartment complex or other residential housing for which parking is restricted to residents and guests, the owner or authorized agent of the parking facility may authorize vehicles to be towed from one location on the parking facility to another location on the same parking facility under the following rules:
    • (1) A vehicle may only be towed from one location on a parking facility to another location on the same parking facility to permit the parking facility owner to make repairs or improvements upon the parking facility or property served by the parking facility. 
    • (2) Prior to a vehicle being towed and relocated by a towing company under this section, the parking facility shall provide written notice to all residents that repairs or improvements are planned. The notice shall be in conformity with Texas Property Code §92.0131(d). These rules do not affect any rights or obligations created by Texas Property Code §92.0131, nor allow possession of the vehicle to be withheld or impaired. 
    • (3) The notice shall be provided at least 10 calendar days in advance and at a minimum state:
      • (A) the areas of the parking facility where parking is prohibited for the   duration of repairs or improvements; 
      • (B) the date and time after which vehicles may no longer be parked in the specified areas; 
      • (C) the date and time when the areas will be available for parking in the future, or if not known, how residents will be notified that the areas are again available for parking after completion of repairs or improvements; 
      • (D) that vehicles will be towed without the consent of the vehicle owner or operator and at their expense, if vehicles are parked in the designated areas at any time after notice is given and work is completed;
      • (E) the location at the same parking facility to which the vehicle will be moved;
      • (F) if the vehicle is towed from the designated area after the date and time provided in the notice and prior to the areas being reopened for parking, the tow fee charged to the vehicle owner or operator shall not exceed 75 percent of the private property tow fee established under Texas Occupations Code, Section 2308.0575;
      • (G) a telephone number for contacting the parking facility owner or authorized agent to enable a person to recover a vehicle which has been relocated under this section. 
    • (4) Except when repairs or improvements are immediate and unforeseeable, or as authorized by a peace officer, a vehicle may not be towed and relocated within a parking facility or on parking facility property without actual written notice to every affected resident as mandated in this section.
    • (5) If, due to an immediate and unforeseeable need to make repairs or improvements, it is not possible to give 10 calendar days written notice, each affected resident shall receive written notice as soon as the need for repairs or improvements is known.
    • (6) The owner or operator of any authorized vehicle which is towed from one location on a parking facility to another location on the same parking facility without 10 days written notice may not be charged for the tow. 
    • (7) The towing company and tow truck operator performing the relocation of vehicles within a parking facility are responsible for creating and maintaining a tow ticket for each vehicle relocated under this section as required by law. In addition to §86.705(g) and §86.709, the tow ticket shall state the name of the individual who authorized the vehicles relocation and the date when the parking facility or authorized agent gave notice to the owner or operator of each vehicle relocated. 
    • (8) A peace officer is authorized to direct the relocation of a vehicle from one location within a parking facility to another location within the parking facility to further public safety.

§86.800. Fees. 

  • (a) Application Fees 
    • (1) - (2) (No change.)
    • (3) Operator License 
      • (A) Original Application--$100 
      • (B) Renewal--$100 
      • (C) Duplicate License--$25 
      • (D) Operator License Amendment--$25 
      • [(E) Training License--$25
    • [(4) Dual Vehicle Storage Facility License and Towing Operator 
      • (A) Original Application--$150 
      • (B) Expedited Dual License--$75 
      • (C) Renewal--$150

*n

The repeals are proposed under Texas Occupations Code, Chapters 51 and 2308, which authorize the Commission, the Department’s governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapters 51 and 2308.  No other statutes, articles, or codes are affected by the proposal.

[§86.212. Licensing Requirements--Dual Vehicle Storage Facility Employee and Towing Operator License]

[§86.213. Licensing Requirements--Towing Operator Training License]

[§86.452. Risk-based Inspections]

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 2, 2017.


 

Brian E. Francis
Executive Director
Texas Department of Licensing and Regulation