March 13, 1987 

Honorable Erwin Barton 

Chairman 

Human services collmlittee 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 78769 

Dear Representative Barton: 

You ask several questions 

city towing. You have provided 

Tow Times as background. 

Opinion No. ~~-644 

Re: Municipal regulation of the 

towing industry 

about municipal regulation of intraus with a copy of an article from the 

Your first question is whether the city of Pasadena may regulate 

intra-city towing. Pasadena is a home-rule city. Home-rule cities 

have authority to do anything the legislature could authorize them to 

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 way not, however, conflict with state law. city of 

Brookside Village v. Coaeau. 633 S.W.2d 790, 796 (Tex. 1982), cert. 

denied, 459 U.S. 1087 (1982). Also. regulation in a particular area 

is preempted by state legislation if it appears that the legislature 

intended for state statutes to occupy the entire field. See generally 

Attorney General Opinion Nos. JM-619 (1987); JM-226 (1984); R-1071 

(1977). 

Several state statutes affect the towing industry. See V.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 

owner of the vehicle being towed. The other 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, we cannot 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 

- 

p. 2921 
Eonorable Erwin Barton - Page 2 (JM-644) 

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 must be within the statutory powers granted to 

the agency and may not impose restrictions in excess of or incon- - _ 

sistent with statutory provisions. Bexar County Bail Bond Board v. 

Deckard. 604 S.W.2d 214. 216 (Tex. Civ. Am. - San Antonio 1980. no 

writ). The Railroad 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). See generally 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 may set 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 may be recovered against cities under federal 

antitrust laws, a city’s regulatory activity way be enjoined if it 

violates those laws. See 15 U.S.C. $35(a) (Supp. II 1984); see also 

Rove& & Mackerron, municipal Regulation and Federal Antitrust 

Policy, 32 UCLA L. hV. 719 (1985). 

Your fourth question is whether a city ordinance is considered to 

be a contract between the city and Emergency Wrecker Pernit holders. 

You do not ask about any particular city ordinance, nor do you explain 

what an Emergency Wrecker Permit is. A city ordinance is not usually 

considered to be a contract. Presumably you are asking whether a city 

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 a particular ordinance, and even 

then such a question would likely involve fact questions, which we 

cannot address in the opinion process. 

SUMMARY 

A home-rule city may regulate intra-city towing, 

but municipal regulations wust not conflict with 

state law or violate federal antitrust laws. 

JIM MATTOX 

Attorney General of Texas 

p. 2922 
Honorable Erwin Barton - Page 3 (J&644j 

JACK HIGRTOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Sarah Woelk 

Assistant Attorney General 

p. 2923