Counting Days – Tow Hearing versus TRCP
Counting days can be more difficult that it sounds when you must count using methods set statute. For example, the Texas Rules of Civil Procedure count using phrases such as “within thirty days” or “not less than thirty days” when discussing filing and response deadlines. These phrases make it clear that the last day in the deadline is counted for purposes of a timely filing, response, or submission. If there was any doubt as to that fact, it is resolved by Tex. R. Civ. P. 4 which spells out counting procedures:
“In computing any period of time…the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday.”Tex. R. Civ. P. 4
However, Tex. R. Civ. P. 4 may not apply to counting days under the Texas Towing and Booting Act, such as in the case of a Tow Hearing. The Texas Rules of Civil Procedure govern “the procure in justice court…in all actions of a civil nature…” which sounds as though it would apply to a Tow Hearing on first read. Tex. R. Civ. P. 2. However, the Texas Attorney General has opined that TTBA § 2308.456 requires that the request for a Tow Hearing be filed before the 14th day following the date the vehicle was removed. Id. at § 2308.456(a). Thus, the TTBA counting method results in only 13 days to file an application for a Tow Hearing. TTBA § 2308.456 appears to either count the portion of the day remaining on the date the vehicle was towed as a true 14-day deadline or, in the alternative, only have grant 13 “counting days” in the deadline. Under either scenario, the number of “counting days” would never amount to 14 full days.
Adding to the confusion, the Texas Towing and Booting Act § 2308.456(a) appears to exclude all weekends and legal holidays from its deadline calculation. See Id. at § 2308.456 (stating that the request must be filed with the If weekends and legal holidays are not “counting days,” then the TTBA grants more than 13 (or 14) calendar days to file because there will be at least four days (the weekends) skipped in calculating the filing deadline. However, this filing deadline calculation is not without its quirks.
Excluding weekends and holidays grants additional filing time to those who are towed on a Saturday versus those who are towed the Monday following. For example, assume that John is towed on Saturday and Susan’s car was towed on the following Monday. Each of John and Susan will have to file their respective applications for a tow hearing “before the 14th day after the date” each was towed. Tex. Occ. Code § 2308.456(a). However, despite the fact that John was towed two days prior to Susan, his filing deadline would be only one day before that of Susan. While this results in each person having the same number of counting days to file in weekdays/non-holidays, it results in one applicant having an additional weekend day to prepare and locate counsel for their hearing.
In the example above, John had 18 calendar days to file his response when weekends were included and the day the car was towed was excluded. Similarly, Susan had 17 calendar days until the deadline. Each of John and Susan had more than 14 calendar days to file, but in order to know that they would have had to engage in a rigorous analysis of the statute, learned to skip weekends, and known the court’s holiday schedule. This is far too complex a system for a brief statute designed to protect everyday Texans. It would be far simpler for the statute to give a round number, such as 20 days, include weekends and holidays in day counting, and extend the filing deadline in the event that the 20th day fell on a weekend or a holiday to the next day that the courts are open.
The Texas Towing and Booting Act even refers to the “before the 14th day after” deadline as a “14-day period,” which it is clearly not. See Tex. Occ. Code § 2308.456(c.) (stating “The 14-day period for requesting a hearing under Subsection (a) does not begin until the date on which the towing company…”). This reference does nothing but add to the likely confusion of consumers, towing companies, and vehicle storage facilities. Imagine for a moment the difficulty a justice court judge would have keeping a straight face while explaining to a party that despite the mention of a “14-day period” in the TTBA, there are not really 14 “counting days” so the deadline for requesting a Tow Hearing has passed. Conversely, one can imagine the frustration of a towing company, vehicle storage facility, or parking facility owner who, despite a plaintiff having clearly filed a late tow hearing application, is now forced to defend a proceeding in justice court.
The problem with a poorly written law is that it really helps no one. When poorly written statutes like this portion of the TTBA are passed into law, it results in inconsistent or arbitrary enforcement or, worse, selective enforcement by judges. Sometimes, this inconsistent enforcement is the result of a different opinion on what the language of the law means. Other times, it is the result of a judge with an agenda. Regardless, vague laws lead to unpredictability, which is the very thing that any law should strive to avoid.