THE TEXAS TOWING AND BOOTING ACT [REVISED 12/11]

This article discusses what you must do to comply with the state's towing law.

Chapter 2308 of the Texas Occupations Code is the statute governing the towing and booting of vehicles, including non-consent tows on any private property, including apartments, shopping centers and office buildings. Since 2007, regulation of state towing laws has been under the jurisdiction of the Texas Department of Licensing and Regulation (TDLR).TDLR has an advisory board made up of various stakeholders, including a private parking facility owner, which makes recommendations on towing issues to TDLR's Commissioners.

The statutory provisions

1. Facility owner can tow without risk. The statute protects the owner from liability for damage or theft to the vehicle during towing and storage if (a) the towing is by an insured towing service, (b) the storage is by an insured storage company and (c) the towing is based on any one of the following:

1. written or oral notice is actually received by the vehicle owner or operator; or
2. a notice was taped to the vehicle's front windshield and the vehicle was later illegally parked elsewhere; or
3. a notice was taped to the vehicle's front windshield and the notice was also given via certified mail to the vehicle owner of record and the vehicle is not moved within 15 days after the notice was mailed; or
4. the vehicle is unlawfully parked in a properly marked handicap parking space; or
5. the vehicle is obstructing an aisle, entry or exit to the parking facility; or
6. the vehicle is obstructing a pedestrian or vehicle gate; or
7. the vehicle is obstructing garbage truck access to a dumpster; or
8. the vehicle is blocking another vehicle from exiting a parking space; or
9. the vehicle is parked in a properly marked fire lane; or
10. the vehicle is parked in a non-firelane zone brightly painted "TOW AWAY ZONE" with 3-inch contrasting letters; or
11. the vehicle is parked between the property line and the curb, and notice was given via (1), (2) or (3) above; or
12. the vehicle is a semitrailer, truck-tractor, or a trailer of any size or type parked without express permission from the rental housing owner; or
13. the vehicle is leaking fluid that presents a hazard or threat to persons or property; or
14. signs complying with the statute were posted at all entrances to the parking facility; or
15. signs complying with the statute were posted at all entrances to the particular portion of the parking facility where parking is limited or prohibited
16. the resident was provided with a copy of the towing policy before the lease was signed.

There are two exceptions to all of the foregoing: (i) you cannot immediately tow upon actual notice (given orally, in the lease, or in a separate written notice) if the towing is for an expired inspection sticker or vehicle license, and (ii) you cannot ever tow a government-owned emergency vehicle (police or sheriff car, fire truck, emergency medical service vehicle, etc.) for any reason under any circumstances. (See paragraph 13 of this article for details.)

Remember that posting signs at entrances is NOT necessary if towing is based on (1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), or (13).

2. What kind of vehicles? The statutory definition of "vehicle" is very broad. The statute includes anything that can be transported or drawn on a public road except for devices moved by human power such as bicycles. "Vehicle" includes cars, trucks, motorcycles, recreational vehicles and trailers, regardless of size and regardless of whether they are operable-but remember it doesn't include emergency vehicles, regardless of the circumstances.

3. Towing without any notice of any kind. No notice is necessary if the vehicle is illegally parked in a properly marked fire lane or is blocking an aisle, entry, exit or another vehicle from exiting its space. No notice is necessary when the vehicle is parked in a non-fire lane zone brightly painted "TOW AWAY ZONE" with 3-inch contrasting letters. No notice is necessary if the vehicle is blocking a dumpster, pedestrian gate or vehicular gate, or is leaking a hazardous fluid endangering others or their property. No notice is necessary if the vehicle is a semitrailer, truck-tractor or trailer of any kind that is parked without your express permission. (This includes U-haul-type trailers and boat trailers, with or without boats on them.) "No notice" in the foregoing sentences means exactly what it says, i.e., no written or oral notice, no windshield notice, no certified mail notice and no entry sign notice.

4. Towing based on actual notice. The statute allows the owner to tow an illegally parked vehicle if the vehicle owner or operator actually receives notice from the owner or manager that the vehicle is illegally parked, subject to the exceptions for emergency vehicles and out-of-date licenses and inspection stickers. The notice can be oral or in writing. Towing can take place immediately after the notice is actually received by the vehicle owner or operator.

5. Towing based on windshield notice. The statute allows an owner to put a notice on the front windshield of an illegally parked vehicle and tow the car if the notice contains the required statutory message about illegal parking and if either one of the following two things occurs:
a. the vehicle is later found parked in another illegal parking space; or
b. the owner or manager sends a certified mail notice to the vehicle owner's address as shown in the records of the Texas Department of Transportation (TxDOT) and the vehicle is not moved within 15 days after mailing this notice. This is true even when the vehicle owner no longer lives at that address and even when the vehicle owner refuses to accept the certified mail. Because of recent changes to federal law which limit TxDOT's authority to disclose ownership information, to get the vehicle owner's address from TxDOT, you must submit a written request to TxDOT. You can find the vehicle serial number in most cases below the vehicle inspection sticker on top of the dashboard.

Towing based on accessible sign notice. The statute allows towing of vehicles illegally parked in properly marked accessible spaces. The wheelchair symbol sign which designates the accessible space must be mounted at least 5 feet high, and the space itself must conform to the parking dimensions contained in the article, "State and Federal Accessibility Standards for the Apartment Industry." To tow from an accessible space, you do not have to give prior notice to the vehicle owner or operator or put up additional signs anywhere. (Of course, there must be a sign designating the accessible parking space.) The only vehicles that can legally park in accessible spaces are vehicles with the wheelchair insignia on the license plate or a special tag displayed on the dashboard or rear-view mirror. The tags are prepared by TxDOT and issued through the county clerk's office.

Towing based on entry sign notice. The statute allows the owner to remove vehicles illegally parked in violation of properly posted signs at all entrances. However, there are requirements for size, height, location, content, symbols and color on the signs. These requirements are discussed next.

Entry sign content, colors, size, etc. If you want to tow on the basis of entry signs, there are requirements for placement, height, color, symbols and content of the entry signs. The signs must be at least 18 inches x 24 inches; and the large white-on-red lettering in the second section of the sign must be at least 2 inches tall. There are many other requirements regarding location, height and placement in relation to entrances. See Section 2308.302 of the Occupations Code.

The statute prevents the towing company from giving the owner anything of value. However, in 2011 the law was amended to allow an exception so that a towing company could provide signs to the parking facility owner at the towing company's expense.

Towing from sidewalks, driveway aprons, etc. The statute allows towing of vehicles parked between the owner's property line and the street curb of a municipal or county road. This includes driveway aprons, sidewalks and landscaped or grassy areas between the property line and the curb (or centerline of the road drainageway if there is no curb). To tow such a vehicle, the owner must:
. be able to testify that actual notice (oral or written) was received by the owner or operator of the vehicle; or
a. put a notice on the vehicle's front windshield, and then either (i) send the 15-day certified mail notice and wait the 15 days to tow, or (ii) tow immediately if the vehicle is moved and you later find it parked in the right-of-way again.
Written notice to towing company is sometimes necessary. A request or notice from the owner to the towing company to tow a vehicle is not necessary if:
. the vehicle is being towed from a properly marked fire lane; or
a. the vehicle is being towed from a handicap parking space; or
b. the vehicle is blocking an aisle, entry, exit or another vehicle from exiting its space.

If signs are used as the basis for towing, the statute requires the towing company to obtain written notice from the owner that the owner has posted the requisite signs at the entrances or at entrances to designated no-parking areas. A one-time notice to the towing company that signs have been properly posted is sufficient. The owner does not need to give notice to the towing company every time a vehicle is towed on the basis of signs.

If the owner is towing on any other basis, the statute requires the towing company to obtain a written notice from the owner that:
c. the vehicle owner or operator received oral or written notice to remove the vehicle; or
d. the owner put a notice on the windshield and found the vehicle later parked elsewhere in an illegal space; or
e. the owner put a notice on the windshield and complied with the 15-day certified mail notice provision.

As a practical matter, towing companies make the owner provide written notice to the towing companies when it is required. Notification by letter, memo or fax will suffice. Towing myths. Amazingly, there are a number of towing statute misconceptions held by some owners and managers--and even by some towing companies. Those myths are:

• Vehicles may be towed after they have been tagged for 24 hours.
• Vehicles must be tagged for 24 hours before they can be towed.
• Entry signage is always necessary in order to tow a vehicle.
• Property owners or their representatives must be present at the time of towing.
• Towing companies cannot "patrol" to tow vehicles that are illegally parked.

All of the above bullet points are false. The statute doesn't authorize tagging a vehicle and towing it 24 hours later. It doesn't require a vehicle to be tagged for 24 hours before towing. It doesn't require signage for every single type of towing. It doesn't require the presence of the owner or his representative at the time of towing. It doesn't prevent a towing company from patrolling an owner's property to tow illegally parked vehicles (assuming the facility owner has requested such patrolling.)

Statutory authorizations

Owners may tow vehicles that are parked in violation of Section 2308.253(b). This section contains towing authorizations, which are grounds for towing by rental housing owners without having to worry about actual notice or entry signs.

The authorizations will be particularly helpful in towing vehicles of visitors, contractors, vendors, neighbors, trespassers and "occupants" that: (i) obstruct vehicular or pedestrian gates; (ii) obstruct access to a dumpster; (iii) have serious fuel leaks; (iv) are boat trailers, U-Haul-type trailers or large trucks parked without express owner permission; or (v) are parked in areas where actual or signage notice had to be given prior to towing. Those portions of the statute read as follows:
b. The owner or operator of a vehicle may not leave unattended on a [residential housing] parking facility a vehicle that:
1. obstructs a gate that is designed or intended for the use of pedestrians or vehicles;
2. obstructs pedestrian or vehicular access to an area that is used for the placement of a garbage or refuse receptacle used in common by residents of the apartment complex;
3. obstructs a restricted parking area or parking space designated under Subchapter C, including a space designated for the use of employees or maintenance personnel of the parking facility or apartment complex;
4. is in a tow away zone, other than a fire lane covered by Section 2308.251(c), that is brightly painted and is conspicuously and legibly marked with the warning "TOW AWAY ZONE" in contrasting letters at least three inches tall;
5. is a semitrailer, trailer, or truck-tractor, as defined by Chapter 502 of the Transportation Code, unless the owner or operator of the vehicle is permitted under the terms of a rental or lease agreement with the apartment complex to leave the unattended vehicle on the parking facility; or
6. is leaking a fluid that presents a hazard or threat to persons or property."

Practical aspects of these provisions. Under Subdivisions (1) and (2) of Subsection (b), rental housing owners will be able to treat vehicles obstructing pedestrian or vehicular access to gates or dumpsters just as if actual notice has been given to the vehicle owner or operator. No curb coloring, signage or notice of any kind is necessary in order for rental housing owners to tow under such circumstances. Nothing needs to be said about this towing right in the lease between the property owner and the resident.

Under Subdivision (3), rental housing owners will be permitted to tow vehicles from spaces properly marked with signage under existing "Subchapter C" of the towing statute, including spaces properly marked for use of managers, leasing agents or maintenance personnel. Subchapter C includes Sections 2308.301 through 2308.305 of the existing towing statute. That statutory provision already permits towing if there is proper signage; so new Subdivision (3) really doesn't add anything new to towing rights already in the statute.

Under Subdivision (4), rental housing owners will be allowed to tow any vehicle (except for emergency vehicles) from an area marked by a brightly painted curb that contains 3-inch tall conspicuous letters stating "TOW AWAY ZONE." (TAA general counsel recommends black letters on a bright yellow curb.) No actual notice and no further signage notice will be necessary for towing under such circumstances. No governmental approval will be necessary for owners to paint their curbs in this manner. Nothing needs to be said about this towing right in the owner's lease.

Under Subdivision (5), rental housing owners will be able tow a truck-tractor, a semitrailer and any kind of trailer (including boat trailers and U-Haul-type trailers) that is parked unattended on the owner's property--except when the owner has given written permission in a lease to do so. No actual notice and no further signage notice will be necessary for towing under such circumstances. Nothing needs to be said about this new towing right in the owner's lease. The significance of this new towing right is that residents will not be able to argue that they have implied permission to park these kinds of vehicles on the owner's property just because they are residents. Instead, residents will need to get express permission from the owner to park a truck tractor, semitrailer or any other kind of trailer on the owner's property. For good resident relations, it is advisable to inform residents of this new law before towing their truck-tractors or trailers unless your rules have already expressly prohibited such parking.

Under Subdivision (6), rental housing owners will be able tow vehicles that are leaking fuel in hazardous quantities. No actual notice or signage notice will be necessary for towing under such circumstances. Nothing needs to be said about this new towing right in the owner's lease.

•Restrictions. The law provides some towing restrictions aimed at stopping abuses. The restrictions are in Subsections (c), (d) and (e) of Section 2308.253, which read as follows:
c. A parking facility owner may not have an emergency vehicle described by Section 2308.251(b) removed from the parking facility.
d. Except as provided by a contract described by Subsection (e), a parking facility owner may not have a vehicle removed from the parking facility merely because the vehicle does not display:
1. an unexpired license plate or registration insignia issued for the vehicle under Chapter 502 of the Transportation Code or the vehicle registration law of another state or country; or
2. a valid vehicle inspection certificate issued under Chapter 548 of the Transportation Code or the vehicle inspection law of another state or country.
e. A contract provision providing 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 is valid only if the provision requires the owner or operator of the vehicle to be given at least 10 days' written notice that the vehicle will be towed from the facility at the vehicle owners' or operators' expense if it is not removed from the parking facility. The notice must be:
1. delivered in person to the owner or operator of the vehicle; or
2. sent by certified mail, return receipt requested, to that owner or operator."

Emergency vehicles. Under Subsection (c), property owners will not be able to tow fire trucks, police cars, sheriff's cars or emergency medical vehicles for any reason--even if the vehicles are parked in a fire zone, in an accessible space, in front of a Dumpster, in the manager's reserved parking space, etc.

Expired inspection stickers or expired licenses. Under Sections (d) and (e), residential housing owners may tow vehicles for lack of a current inspection sticker or current license plate only when all of the following occur:

• the property owner has entered into a lease or contract with the vehicle owner or operator;
• the lease or contract prohibits parking without a current inspection sticker or license;
• the lease provides that before the vehicle can be towed for not having a current inspection sticker or license plate, the vehicle owner or operator must be given 10 days' written notice that the vehicle will be towed for violating the above lease provision;
• the notice was hand delivered or sent by certified mail to the vehicle owner or operator; and
• the property owner has waited 10 days before towing on grounds of an expired inspection sticker or license.

This 10-day provision of the statute doesn't affect a rental housing owner's right to tow for other reasons that are authorized under the statute, for example, towing a vehicle illegally parked in a fire lane, handicap space, driveway, or towing after a 15-day certified mail notice to the vehicle owner as listed in TxDOT records, or towing if oral notice or written notice was given prior to towing (such as the written notice of prohibited parking contained in paragraph 21 of the TAA Lease Contract).

The TAA Lease Contract provisions. Paragraph 21 of the TAA Lease Contract contains a prohibition against parking without a current inspection sticker or current license plate. The purpose of that prohibition has always been to give the property owner the leverage to get rid of junk vehicles, such as badly wrecked vehicles or vehicles without wheels or engines. The statutory requirement of 10 days' written notice will not prevent an owner from being able to get rid of truly dilapidated vehicles of residents in 10 days. At the same time, the 10-day notice in these situations will stop abuses by some towing companies and property owners who have towed perfectly good vehicles (including vehicles of their own residents) just because someone forgot to get an inspection sticker or license plate renewal on time. The TAA Lease Contract includes the 10-day notice language that is necessary to tow a resident's vehicle for violating the inspection sticker or license plate provision of the lease. The 10-day waiting period starts when the notice is hand delivered or the certified mail notice is mailed.

Caveat. When towing for lack of a current inspection sticker or license plate under a lease containing the 10-day language, rental housing owners will need to be certain that the vehicle being towed is owned or operated by a resident. This is because a lease between a property owner and a resident doesn't constitute a "contract" between the property owner and the resident's family, guests or occupants as required in Section 2308.253(e). Unless the property owner is positive that the vehicle that is illegally parked is either owned by a resident or parked there by a resident whose lease contains the 10-day language, the property owner cannot tow the vehicle for lack of a current inspection sticker or license. The only exception is when a non-resident or occupant has entered into a contract with the property owner in which the statutory 10-day towing language is expressly stated.

Parking contract for occupants. If there are occupants (as contrasted to residents) who will be owning and parking vehicles on your property, the lease signed by the resident does not bind the occupants. Therefore, in order to tow or boot a vehicle that is owned by an occupant merely because the vehicle has an out-of-date sticker or license, you need to have the occupant sign a written contract similar to the following:

I am the owner of the vehicle with license plate No. _____________ issued by the State of ___________, as of the date of signing this contract. I will abide by all parking requirements contained in the lease, dated ________________________, between ________________________________________________________ (as the dwelling owner) and __________________________________________________________________ as resident(s), for the dwelling located at ________________________________________________________________________. This includes any parking rules subsequently adopted by the owner and distributed to resident(s). I acknowledge that I have read and am on notice of all lease provisions relating to parking vehicles or trailers of any kind, and understand that my vehicle can be towed or booted if I violate such parking requirements.

____________________________________
Dwelling owner or representative Occupant
____________________________________
Occupant
____________________________________
Date

If the vehicle is owned by a resident but merely driven or parked by an occupant, this form is not necessary since the statute allows the 10-day notice to be given to the vehicle "owner or operator."

Additional restrictions. The law also requires that a copy of the towing rules or policies must be provided to the resident before the lease is signed. In addition a copy of the towing rules and policies must either be signed by the resident, included in the lease or included in an attachment to the lease. If your rules or policies are included in an attachment to the lease, the attachment must be expressly referred to in the lease. The title to the rules or policies must be in bold or underlined. TAA's Lease Contract contains a provision that meets these statutory requirements.

Towing companies

14. No federal pre-emption for parking facility owners. Because of a 2001 Dallas Court of Appeals decision, some contended that the Texas statute was invalid and unenforceable by property owners because of federal pre-emption. Not so. Federal law does not pre-empt the Texas towing statute as it applies to parking facility owners. This is because federal pre-emption only applies to state or local regulation of motor carriers (including towing companies). The pre-emption does not apply to state or local regulation of parking facility owners or operators who have vehicles towed from their property without the consent of the vehicle owner or operator. This means that the Texas towing statute still applies to property owners, office building owners, mini storage owners, restaurants, retail stores, etc., and any other owner of property where vehicles are parked. This opinion of TAA general counsel is shared by the attorneys for the federal Motor Carrier Safety Administration and by the general counsel for the Towing and Recovery Association of America.

15. Indemnity agreement with towing or booting company. It has always been advisable for property owners to include an indemnity clause in their contracts with towing companies, particularly since a consumer whose vehicle has been illegally towed cannot because of federal pre-emption sue and recover a judgment against the towing company under the Texas towing statute. Therefore, in most situations, a consumer seeking statutory relief will only be able to sue the parking facility owner for an illegal tow or boot. To better protect the facility owner from liability to the consumer when the owner's towing or booting company fouls up, TAA general counsel has prepared a sample indemnity clause which reads as follows:

"Towing or Booting Company is fully aware of the requirements of the Texas Towing and Booting Act (Chapter 2308 of the Texas Occupations Code). Company agrees to abide by such statute and to hold harmless and indemnify Owner from all claims, liabilities, suits, attorney's fees and other expenses that Owner incurs or expends because of Company's negligent or willful failure to comply with: (1) Owner's instructions regarding towing; (2) the insurance requirements for towing companies contained in the Texas Towing and Booting Act; and (3) duties of towing companies that are contained in the towing statute and that would apply to towing companies except for federal pre-emption. Company will not be responsible for violations of the statute by Owner unless such violations are caused by the negligent or willful conduct of Company for its employees or agents."

In addition, the Texas Towing and Booting Act provides that a rental housing provider may be held liable for damage to a towed vehicle if the towing company does not have insurance. Therefore, if you do not have an indemnity agreement with the towing or booting company, you should at least ask for verification of insurance.

16. Towing or booting agreement addendum. Rather than incorporating the above language into the body of a towing agreement, it's probably easier to simply attach an addendum to any towing agreement presented to a property owner by a towing company. To facilitate this goal, TAA has prepared an "Addendum to Contract Between Towing Company and Rental Housing Owner." It contains the above sample indemnity clause as well as other protections for the owner. TAA general counsel recommends its use.

17. Booting. State law regulates booting of unauthorized vehicles. A "boot" is a lockable road wheel clamp or similar vehicle immobilization device that is designed to immobilize a parked vehicle and prevent its movement until the device is unlocked or removed. A state license is required in order for a person to operate a booting company or perform booting. In order to boot an unauthorized vehicle without the consent of the owner, a parking facility owner must have appropriate signs that comply with state law and that prohibit unauthorized vehicles. When a boot operator installs a boot, it must affix a conspicuous notice to the vehicle's front windshield or driver's side window stating:

• that the vehicle has been booted and that damage may occur if the vehicle is moved
• the date and time the boot was installed
• the name, address and telephone number of the booting company
• a telephone number that is answered 24 hours a day to enable to the owner or operator of the vehicle to arrange for removal of the boot
• the amount of the fee for removal of the boot and any associated pending fees, and
• notice of the right of the vehicle owner to a hearing.

When a booting operator removes a boot, it must provide a receipt to the owner or operator with the name of person who removed it, the date and time the boot was removed, the name of the person to whom the vehicle was released, the amount of fees paid for removal and other associated parking fees, and stating the right of the vehicle owner to a hearing.

Conclusion

The Texas Towing and Booting Act is helpful for the rental housing industry and for residents who have their parking spaces "stolen" by interlopers. Likewise, it is tough on parking facility owners who do not follow the statute precisely. The penalties are severe if you foul up--so be sure of your facts and the law before you tow.

[1] The statute incorporates by reference the definitions of "semitrailer," "trailer" and "truck-tractor" that are contained in Chapter 502 of the Transportation Code. Those definitions in Section 502.001 of the Code read as follows:

(21) "Semitrailer" means a vehicle designed or used with a motor vehicle so that part of the weight of the vehicle and its load rests on or is carried by another vehicle.

(22) "Trailer" means a vehicle that: (A) is designed or used to carry a load wholly on its own structure; and (B) is drawn or designed to be drawn by a motor vehicle.

(23) "Truck-tractor" means a motor vehicle: (A) designed and used primarily for drawing another vehicle; and (B) not constructed to carry a load other than a part of the weight of the vehicle and load to be drawn.

[2] Of course, as a practical matter a property owner can give anyone actual permission to park anything on his property. But if an owner does so, it is advisable to put it in writing and keep a copy in order to prevent swearing matches over whether permission was actually given.

[3] Section 2308.251(b) describes an emergency vehicle as one that is "owned by, or the operation of which is authorized by, a governmental entity."