COMMON MISTAKES AT TOW HEARINGS
Tow Hearings were designed to be a quick and easy judicial remedy. The idea was that if a car was towed, a vehicle owner could go to court, apply for a Tow Hearing, talk to a judge, and the judge would make a determination of whether or not probable cause existed for the removal of your vehicle (assuming, of course, that overcharging is not an issue). At that point, one party wins and the other loses. Unlike a traditional lawsuit, Tow Hearings have quick deadlines and no discovery. Unfortunately, there is very little that is “quick and easy” under the law, and a Tow Hearing is no exception. This post reviews a few common mistakes at Tow Hearings .
Failure to “Get the Right Person”
Most people do not realize that the term “person” is defined by law in Texas. See Tex. Gov’t. Code § 311.005. It does not just mean a human being (commonly called an “individual” in legal terminology). The term “person” in Texas encompasses a corporation, limited liability company, a partnership, and many other business entities and structures. Id. Additionally, business entities and individuals in Texas can operate under assumed names, which may be found either in the county records, at the Secretary of State, or both depending on the type of business.
In the case of a Tow Hearing application, that means a vehicle owner is looking for three “persons.” First, the vehicle owner must name the towing company, which can be an individual operating as a “DBA” or a formal business entity such as a limited liability company or corporation. Second, the vehicle owner must name the vehicle storage facility, which again can be an individual or a business entity. Finally, the vehicle owner must name the parking facility owner or law enforcement agency that authorized the tow. If a parking facility owner authorized the tow, that “person” can be an individual but it far more frequently a business entity designed to protect the individual owner from liability. If the person that authorized the tow is a law enforcement agency, then the vehicle owner will have to name the law enforcement agency (such as the Sheriff, DPS, or local police). Tex. Occ. Code § 2308.456(b)(4).
If the vehicle owner fails to properly name all the parties to the Tow Hearing, the TTBA states that the vehicle owner has “waived” its right to request a hearing. While some justice court judges may not abide by the law on this subject, it is important to point out these defects. Just as a vehicle owner may focus on nuances of towing sign height, language, and location, a towing company, vehicle storage facility, and parking facility owner may point out procedural defects in a vehicle owner’s request for a Tow Hearing. After all, it only makes sense that a vehicle owner who a towing company or property owner to comply with the law should likewise have to comply with the TTBA’s filing requirements.
Failure to File the Tow Hearing Request in Before 14 Days.
A request for Tow Hearing must be submitted the court “before the 14th day after the date the vehicle was removed.” See Tex. Occ. Code § 2308.456(a). The Texas Towing and Booting Act provides for very limited exceptions to this rule. Additionally, the language of the statute is not entirely clear on how the 14 days are calculated.
Failure to Deliver Proper Notice to the Court.
Tex. Occ. Code § 2308.456 spells out what must be in a request for Tow Hearing. These are not optional. The statutes specifically state that a request for tow hearing must contain the items in § 2308.456(b). The statutes go on to state that a person who fails to deliver a request in accordance with § 2308.456(a) waives the right to a Tow Hearing. See Tex. Occ. Code § 2308.456(d). Thus, if an applicant for a Tow Hearing misses items or deadlines, he or she could potentially lose the hearing before it even begins.
It is always important to review filing requirement under the Texas Towing and Booting Act BEFORE requesting a tow hearing. The right to a Tow Hearing is granted under the TTBA only if a plaintiff satisfies the minimum filing requirements. If those requirements are not met, the right to the hearing is waived.