March13, 1987

Honorable ErwinBarton Chairman Humanservices collmlittee Texas Houseof Representatives P. 0. Box2910 Austin, Texas 78769 DearRepresentative Barton:
You ask several questions city towing. Youhave provided TowTimesasbackground. Opinion No. ~~-644
Re: Municipal regulation of the towing industry

about municipal regulation of intrauswith acopy of anarticle from the

Your first question is whether the city of Pasadena mayregulate intra-city towing. Pasadena is a home-rule city. Home-rule cities have authority to doanything the legislature could authorize themto do. Accordingly, home-rule cities look to the legislature not for grants of power but for limitations on their powers. City of Corpus Christi v. Continental Bus Systems, Inc., 445 S.W.2d 12 (Tex. Civ. APP.- Austin 1969). writ ref'd n.r.e., 453 S.W.2d 470 (Tex. 1970). A .city ordinance waynot, however, conflict with state law. city of Brookside Village v. Coaeau. 633 S.W.2d 790, 796 (Tex. 1982), cert. denied, 459U.S. 1087 (1982). Also. regulation in aparticular area is preempted by state legislation if it appears that the legislature intended for state statutes to occupy the entire field. Seegenerally Attorney General Opinion Nos. JM-619 (1987); JM-226 (1984); R-1071 (1977).
Several state statutes affect the towing industry. SeeV.T.C.S. art. 6701d. §§20B (defining "tow-away operation"); 106(llzatlons as to trailers and towing); 134A (mirrors); art. 67Olg-1 (removal of unauthorized vehicles parked in fire lanes); art. 6701g-2 (removal of unauthorized vehicles from parking facilities or public highways). Nothing in those statutes indicates that the legislature intended to occupy the entire field of regulation of towing. Both articles 67Olg-1 and 67Olg-2 regulate only towing without the consent of the ownerof the vehicle being towed. Theother statutes cited above are traffic regulations. and local authorities have express authority to adopt additional traffic regulations not in conflict with article 6701d. V.T.C.S. art. 6701d, 026. Therefore, wecannot say that the statutes cited above preclude home-rule cities from regulating intra-city towing. As indicated, however, city regulations cannot conflict with state law. See Attorney General Opinion H-1071 (local -

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ordinance that is stricter than general statute is not inconsistent with state statute).
Your second question is whether the Railroad Comisslon has authority to set rates for a towing charge. Rules promulgated by an administrative agency mustbe within the statutory powers granted to the agency and maynot impose restrictions in excess of or incon- - _ sistent with statutory provisions. Bexar County Bail BondBoard v. Deckard. 604 S.W.2d 214. 216 (Tex. Civ. Am. - SanAntonio 1980. no writ). TheRailroad Co&ission has no express authority to regulate the towing industry. See generally V.T.C.S. art. 6445 (power of Railroad Cosaaission); Nat. Res. Code 181.051 (jurisdiction of Railroad Colmnission); Nat. Res. Code 18111.001 through 113.236 (Railroad Comnission regulation of specific businesses and occupations). See also Tex. Const. art. X, 02, Interpretive Commentary (expansion? aroad Commission’s duties). Seegenerally Attorney General Opinion JM-465 (1986) (agency must have express authority to set a wage scale). Therefore, the Railroad Commission has no authority to set towing rates.
Your third question is whether a city mayset towing rates. As we said previously, we do not think that state law preempts cities from regulating intra-city towing. We do caution. however, that although no damages maybe recovered against cities under federal antitrust laws, a city’s regulatory activity way be enjoined if it violates those laws. See 15U.S.C. $35(a) (Supp. II 1984); see also Rove& &Mackerron,municipal Regulation and Federal Antitrust Policy, 32 UCLAL. hV. 719 (1985).
Yourfourth question is whether acity ordinance is considered to be a contract between the cityandEmergencyWrecker Pernit holders. Youdonot ask about anyparticular city ordinance, nor doyou explain what anEmergencyWrecker Permit is. Acity ordinance is not usually considered tobe acontract. Presumably you are asking whether acity ordinance creates rights and obligations on the part of the city and on the part of persons affected by the ordinance. That question can only be addressed in the context of aparticular ordinance, andeven then such a question would likely involve fact questions, which we cannot address in the opinion process. SUMMARY
Ahome-rule city mayregulate intra-city towing, but municipal regulations wust not conflict with state laworviolate federal antitrust laws.

JIM MATTOX Attorney General of Texas

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JACKHIGRTOWER First Assistant Attorney General
MARY KELLER Executive Assistant Attorney General
RICKGILPIN Chairman, Opinion Committee Prepared by SarahWoelk Assistant Attorney General

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