Justification for Administrative Rule Adoption

Vehicle Towing and Booting Program
16 TAC Chapter 86, amendment §86.705; and repeal §86.213

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 86, §86.705; and adopts the repeal of existing §86.213, regarding the Vehicle Towing and Booting program, without changes to the proposed text as published in the October 5, 2018, issue of the Teas Register (43 TexReg 6522). The rules will not be republished.

The adopted rules implement changes from Senate Bill 1501 and Senate Bill 2065, 85th Legislature, Regular Session (2017), for the Vehicle Towing and Booting program. Collectively, these bills eliminate the towing operator training license and establish standards of conduct for tow operators engaging in the non-consent relocation of vehicles from one area on a parking facility to another area on the same parking facility. The Department previously proposed these rules (43 TexReg 2688), but withdrew them (43 TexReg 4549), due to a technical oversight. The adopted rules are necessary to implement Senate Bill 1501 and Senate Bill 2065.

The adopted amendments to §86.705 create rules to establish standards of conduct necessary for a towing operator to engage in a non-consent relocation of vehicles from one area on a parking facility to another area on the same parking facility. It also establishes signage requirements necessary to provide vehicle operators with proper notice of the relocation date and time. Additionally, the signage helps minimize confusion over why a vehicle is relocated and provides details of where vehicles are relocated.

The adopted repeal of current §86.213 removes the towing operator training license from rules consistent with SB 1501.

The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the October 5, 2018, issue of the Texas Register (43 TexReg 6522). The deadline for public comment was November 5, 2018. The Department received one comment from the Texas Apartment Association. The public comment received is summarized below.

Comment--The Texas Apartment Association (TAA) expressed its support of the proposed rule as written, particularly as it relates to an exemption to notice requirements in the event of an emergency. Additionally, the TAA commended the requirements relating to signage and believes that the rules are fair and favorable to both vehicle and parking facility owners. Lastly, the TAA requested assistance from Department staff in educating its members on the applicability of the new rules and how to remain in compliance.

Department Response--The Department appreciates this comment and is committed to assisting TAA, as well as any, consumer, licensee, or parking facility owner with compliance and education efforts.

The Towing and Storage Advisory Board (Board) met on November 14, 2018, to discuss the proposed rules and the public comment received. The Board recommended adopting the proposed amendments and repeal without changes.

At its meeting on January 11, 2019, the Commission adopted the rules without changes as recommended by the Board.

The amendments are adopted under the 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 adoption are those set forth in Texas Occupations Code, Chapters 51 and 2308. No other statutes, articles, or codes are affected by the adoption.

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

(a) Except for signs required by Texas Occupations Code, §2308.301, a towing company may not directly or indirectly give anything of value to a parking facility owner in connection with the removal of a vehicle from a parking facility.

(b) A towing company may not have a direct or indirect monetary interest in a parking facility from which the towing company for compensation removes unauthorized vehicles.

(c) A towing company may not tow a vehicle to a vehicle storage facility unless the vehicle storage facility is in compliance with the required postings in Texas Occupations Code, §2308.207.

(d) A towing company may not remove and store an unauthorized vehicle unless authorized by Texas Occupations Code, §2308.255.

(e) A towing company may not perform a nonconsent tow unless the property from which the vehicle is towed is in compliance with Texas Occupations Code, §§2308.301 - 2308.305.

(f) Except as authorized by Texas Occupations Code, §§2308.351 - 2308.354, a towing company may not perform a nonconsent tow from:

(1) a leased right-of-way;

(2) an area between a parking facility and a public right-of-way;

(3) a public right-of-way; or

(4) a public roadway.

(g) A towing company may not contract for the removal from a parking facility of a vehicle that does not display an unexpired license plate or registration insignia or a valid inspection certificate, unless the towing company notes on the tow ticket the:

(1) name of the person or company that authorized the tow;

(2) telephone number of the company or person that authorized the tow; and

(3) date of compliance with the notice provisions in Texas Occupations Code, §2308.253(e).

(h) A towing company or towing operator may not charge a fee for a nonconsent tow that is greater than the fee listed in the schedule most recently submitted to the department.

(i) A towing company or towing operator may not charge a fee related to a nonconsent tow that is not listed in the schedule most recently submitted to the department.

(j) A towing company may not charge a fee for a nonconsent tow that is greater than the statewide fee or nonconsent tow fee authorized by Texas Occupations Code, §2308.2065.

(k) A towing company may not charge a fee related to a nonconsent tow unless that fee is authorized by the statewide fee or nonconsent tow fees authorized by Texas Occupations Code, §2308.2065.

(l) A towing company must keep record of every nonconsent tow including, but not limited to, the following information:

(1) vehicle description, including license or vehicle identification number, if available;

(2) a statement describing the reason for towing the vehicle;

(3) location vehicle towed from; and

(4) vehicle storage location.

(m) A towing company may not employ or contract with unlicensed persons required to hold a license under this chapter.

(n) Relocation from one area of a parking facility to another area on the same parking facility may occur if:

(1) Except in case of an emergency involving threat of imminent danger to property, signs complying with this section are installed in the parking facility a minimum of 72 hours preceding relocation.

(2) Each sign required under this subsection may be temporary and must:

(A) be mounted on a pole, post, wall or freestanding board;

(B) be at least 18 inches wide and 24 inches tall; and

(C) be installed so that the bottom edge of the sign is no lower than 6 inches and no higher than 6 feet above ground level.

(3) Each sign required under this subsection must contain:

(A) a red international tow symbol on a white background;

(B) a statement designating the areas which are temporary no parking areas and stating that vehicles parked in the designated area will be relocated to another location on the same parking facility; and

(C) the location where vehicles will be relocated, if known, or a telephone number, including area code, that is answered 24 hours a day to identify the location of a relocated vehicle.

(4) Each required sign must face and be conspicuously visible to a driver that enters the area of the parking facility from which vehicles will be relocated.

(5) Each required sign must be located:

(A) on the right or left of each driveway or curb-cut through which a vehicle can enter the area subject to relocation, including an entry from an alley abutting the facility; or

(B) at intervals along the entrance to the area subject to relocation so that no entrance is farther than 25 feet from a sign if:

(i) curbs, access barriers, landscaping, or driveways do not establish definite vehicle entrances onto the area of a parking facility subject to relocation; and

(ii) the width of an entrance to an area of relocation exceeds 35 feet.

(o) Upon request, the parking facility owner or agent must provide the contact information for the tow company responsible for the relocation.

(p) A peace officer is authorized to direct the relocation of a vehicle from one location on a parking facility to another location on the parking facility to further public safety.

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

This agency hereby certifies that the adoption 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 January 24, 2019.

Brad Bowman
General Counsel
Texas Department of Licensing and Regulation