ATTORNEY GENERALOFTEXAS 

GREG ABBOTT 

April 5,2005 

The Honorable Robert E. Talton 

Chair, Committee on Urban Affairs 

Texas House of Representatives 

Post Office Box 2910 

Austin, Texas 787682910 

Opinion No. GA-03 15 

Re: Whether a municipality that limits fees for 

police-initiated nonconsent tows must comply with 

Transportation Code section 643.204 (RQ-0281-GA) 

Dear Representative Talton: 

You ask whether a municipality that limits fees for police-initiated nonconsent tows must 

comply with Transportation Code section 643.204.’ 

Transportation Code section 643.201 defines a “consent tow” as “any tow of a motor vehicle 

initiated by the owner or operator of the vehicle or by a person who has possession, custody, or 

control of the vehicle. The term does not include a tow of a motor vehicle initiated by a peace officer 

investigating a traffic accident or a traffic incident that involves the vehicle.” TEX. TRANSP. CODE 

ANN. 5 643.201 (e)(2) (Vernon Supp. 2004-05). A “nonconsent tow” is “any tow of a motor vehicle 

that is not a consent tow.” Id. f$ 643.201(e)(4). N onconsent tows include police-initiated tows 

from public property, see id. 5 643.201(e)(2), (4), city-initiated tows from public property, see id. 

5 684.054 (authorizing a towing company to remove a vehicle from a public roadway at the request 

of a municipal employee designated by the municipality to make such requests ), and private-party 

initiated tows from private property, see, e.g. id., 5 684.014 (Vernon 1999) (authorizing a towing 

company to remove a vehicle from a private parking facility at the parking facility owner’s request). 

The Transportation Code permits a political subdivision’s governing body to regulate 

fees associated with “nonconsent tows” originating in the political subdivision’s territory. See id. 

5 643.203 (Vernon Supp. 2004-05). If a political subdivision’s governing body chooses to regulate 

the fees for a nonconsent tow, Transportation Code section 643.204 provides that: 

(a) The governing body of a political subdivision that 

regulates nonconsent tow fees shall establish procedures by which a 

towing company may request that a towing fee study be performed. 

‘See Letter from Honorable Robert E. T&on, Chair, Committee on Urban Affairs, Texas House of 

Representatives, to Honorable Greg Abbott, Texas Attorney General (Oct. 20,2004) (on file with Opinion Committee, 

also available at http:llwww.oag.state.tx.us) [hereinafter Request Letter]. 
The Honorable Robert E. Talton - Page 2 (GA-0315) 

(b) The governing body of the political subdivision shall 

establish or amend the allowable fees for nonconsent tows at amounts 

that represent the fair value of the services of a towing company and 

are reasonably related to any financial or accounting information 

provided to the governing body. 

Id. 5 643.204 (emphasis added). 

You inform us that the City of Victoria (“Victoria”) has an ordinance pertaining to policeinitiated nonconsent tows in its territory. See Request Letter, supva note 1, at 1 and attachment A.* 

Specifically, the Victoria ordinance reads: 

(a) All tow truck permit holders operating permitted tow 

trucks on the public streets shall charge no more than the storage rates 

prescribed by the Texas Department ofTransportation for performing 

nonconsent tows. A charge for any storage service exceeding the 

rates prescribed or in addition to the storage related services 

prescribed shall constitute a violation of this article. 

(b) The city manager may establish further rate limits in the 

city’s contracts with rotation list privilege holders. These rate limits 

shall not be considered rate regulations, but shall instead be 

considered contractual obligations pursuant to the city’s provision of 

referrals to contractees. Failure to comply with any such contractual 

rate limits shall not be punishable as a violation of this ordinance, but 

shall instead merely give the city the right to declare a breach of 

contract and potentially terminate said contract. 

VICTORIA, TX., CODE OF ORDINANCES sec. 23-75 Rates. 

You further inform us that the Texas Towing and Storage Association considers the 

ordinance to be a regulation of nonconsent tow fees but notes that Victoria has not established 

procedures by which a towing company may request a towing fee study be performed. See Request 

Letter, supru note 1, at 1 and attachment B.’ You agree with the association’s assessment that the 

ordinance is regulating nonconsent tow fees and question whether Victoria is impermissibly ignoring 

its statutory duty. See Request Letter, supra note 1, at 1. Particularly, you ask “whether a city can 

bypass the clear intent of [section 643.2041 by refusing to set procedures even though [it has] set fees 

for nonconsent tows.” Id. 

‘VICTORIA, TX., CODE OF ORDINANCES sec. 23-75 Rates. 

‘See Letter fmmlany Cemosek, Chairman, Texas Towing and Storage Association, to Will Armstrong, Mayor, 

and Denny Arnold, City Manager, City of Victoria (June 16,2004). 
The Honorable Robert E. Talton - Page 3 (GA-0315) 

In answer to your broader question, without reference to a specific city, we note that Texas 

cities, be they general-law or home-rule cities, are required to comply with state law. See TEX. 

CONST. art. XI, @4, 5. Thus, a city must follow the plain language of section 643.204, if the city 

regulates nonconsent towing fees in its territory. See TEX. TRANSP. CODE ANN. $643.204 (Vernon 

Supp. 2004-05). 

We assume, however, that your question, though broad in scope, refers to the more specific 

circumstances ofVictoria’s ordinance. In Victoria’s case, we must determine as a threshold matter 

whether the city regulates nonconsent tow fees. 

Here we observe that the legislature has not defined the term “regulate” as it is used in 

Transportation Code chapter 643. See id. §§ 643.002-,254 (Vernon 1999 & Supp. 2004-05). In a 

bill analysis for House Bill 849, which enacted the section construed in this opinion, the legislature 

discussed regulation in the federal context and apparently designed these sections to address federal 

law. See HOUSERESEARCH ORGANIZATION,BILLANALYSIS, Tex. H.B. 849,78th Leg., R.S. (2003) 

at 2 (“The U.S. Supreme Court has upheld local government regulation ofthe towing industry in the 

wake of federal deregulation.“); see also 49 U.S.C. 5 14501(c)(2)(C) (2000) (granting a limited 

exemption to a state or its political subdivisions from the federally preempted regulation of the 

towing industry by permitting a state or its political subdivisions to regulate nonconsent tow fees). 

Moreover, Transportation Code section 643.201 permits political subdivisions in Texas to “regulate 

the operation of a tow truck to the extent allowed byfederal law _” TEX. TRANSP. CODE ANN. 

§ 643.201(a) (Vernon 2004-05) (emphasis added). Accordingly, we look to federal law concerning 

the towing industry to determine the meaning of “regulate” and whether Victoria regulates 

nonconsent tow fees. 

Federal law recognizes a distinction between towing regulation and actions a governmental 

body takes in a proprietary capacity. See Cardinal Towing &Auto Repair, Inc., v. City of Bedford, 

Tex., 180 F.3d 686,691 (5th Cir. 1999). A state or municipality acting as a market participant “in 

a narrow and focused manner consistent with the behavior of other market participants” is not 

regulating the towing market. Id. (citing Bldg. and Constr. Trades Council v. Associated Builders 

& Contractors, Inc., 507 U.S. 218,227 (1993)). Consequently, when called upon to determine if 

an ordinance such as Victoria’s ordinance constitutes the regulation of towing, the federal courts 

have resolved it by answering two questions: 

First, does the challenged action essentially reflect the entity’s own 

interest in its efficient procurement of needed goods and services, as 

measured by comparison with the typical behavior of private parties 

in similar circumstances? Second, does the narrow scope of the 

challenged action defeat an inference that its primary goal was to 

encourage a general policy rather than address a specific proprietary 

problem? 

Id. at 693. 
The Honorable Robert E. Talton - Page 4 (GA-03 15) 

In Cardinnl Towing, in the context of analyzing a municipal towing ordinance, the Fifth 

Circuit answered these two questions in the affirmative. See id. In that case, the court was presented 

with a city ordinance that required the City of Bedford to contract only with one towing company 

to meet Bedford’s police-initiated nonconsent towing needs. See id. at 688-89. The court observed 

that because of the “odd structure of the towing industry,” nonconsent tows do not provide an 

opportunity for the vehicle’s owner to participate in negotiating the towing contract. See id. at 696. 

Rather, “the real decision is made by the party who ordered the tow, who chooses both to remove 

the vehicle and the party to perform the service.” M4 Accordingly, the court found that Bedford’s 

ordinance was not a towing regulation because Bedford was merely creating efficiencies for itself 

by way of an ordinance that controlled the small arena of police-initiated nonconsent tows. Id. at 

694-95. 

In a similar case, the Fifth Circuit answered the same questions and found San Antonio’s 

towing ordinances, which prohibited all towing companies from performing any type of tow unless 

under contract with the city, to be regulations. See Stucky Y. City of San Antonio, 260 F.3d 424 (5th 

Cir. 2001), rev’d and remanded on other grounds, 536 U.S. 936 (2002). There the court reasoned 

that San Antonio’s ordinances controlled so broadly the towing market that it had the direct effect 

of reducing the market’s size. See id. at 436. “This effect [did] not speak to a private proprietary 

purchase, but rather to a public regulatory plan.” Id. Furthermore, this effect, coupled with the 

court’s finding that San Antonio expressly considered its ordinances to be regulations, gave the court 

sufficient proof to conclude that San Antonio’s interaction with the market was not so narrowly 

focused that it could safely rule out the city’s regulatory impulse. See id. at 438-39 (citing Cardinal 

Towing, 180 F.3d at 693). 

Here, under the ordinance, a towing company is limited to the fee maximum only when a 

driver is arrested, has been involved in an accident, or has an otherwise disabled vehicle and fails 

or refuses to designate a tow truck company to move the driver’s vehicle from public property.5 In 

‘The Cardinal Towing court elaborated: 

Because the owner of the vehicle will by necessity be unable to choose a towing 

company in nonconsent situations, the only party that can make the type of merit 

selection inherent in market transactions is the party ordering the tow. In the 

situations addressed by [Bedford’s] ordinance, that party is the City, and by its 

choosing the company best able to guarantee fast, reliable towing service, the City 

exemplifies the market forces Congress sought to encourage. 

Cardinal Towing, 180 F.3d at 695, 

‘See Brief’from Miles K. Risley, Senior Assistant City Attorney, City of Victoria, to Nancy S. Fuller, Chair, 

Opinion Committee, Office ofAttorney General, at 3 (Nov. 15,2004) (on file with Opinion Committee) [hereinafler City 

Brief] (citing VICTORIA, TX., CODE OF ORDINANCES sec. 23-65(a)). Sec. 23-65(a) reads: 

When a vehicle which has been involved in a collision or accident, or which is otherwise 

disabled, is unable to proceed safely, or when a driver of a vehicle is physically unable to drive such 

vehicle, or when a police officer arrests the driver of a vehicle and determines that the vehicle is to be 

(continued...) 
The Honorable Robert E. Talton - Page 5 (GA-0315) 

such a police-initiated nonconsent tow situation, the police officer investigating the incident is 

required to relay this information to the police communications officer on duty, who in turn is 

required to select from a list of towing companies that have contracted with the city to perform 

police-initiated nonconsent tows. See VICTORIA, TX., CODE OF ORDINANCES sec. 23-65(a); City 

Brief, supra note 5, at 3. However, Victoria does not require the use of any particular towing 

company for private matters. See City Brief, supru note 5, at 2-3. A towing company that performs 

nonconsent tows from private property is not required to contract with Victoria and therefore is not 

subject to a fee limitation. See id. 

Victoria’s ordinance resembles the ordinance at issue in Cardinal Towing. Victoria clearly 

limits its ordinance to control police-initiated nonconsent tows to create efficiencies for itself. In 

addition, the narrow scope of its ordinance, which appears to control only a portion of the 

nonconsent tow market, defeats the inference that its primary goal is to encourage a general policy 

rather than address a specific proprietaryproblem. Moreover, Victoria expressly considers itspoliceinitiated nonconsent tow rate limits to be elements of a contract between itself and a towing privilege 

holder. See Request Letter, supru note 1, at attachment A (“These rate limits shall not be considered 

rate regulations, but shall be considered contractual obligations pursuant to the city’s provision of 

referrals to contractees.” VICTORIA, TX., CODE OF ORDINANCES sec. 23-75(b) Rates). 

However, Cardinal Towing was concerned with an ordinance that controlled a small portion 

of the towing market and the regulatory effect such an ordinance had on a city’s whole towing 

market, which included a large set ofmarket behaviors. But the Texas legislature is concerned with 

ordinances that have a regulatory effect only on the nonconsent towing market, which includes a 

smaller set of market behaviors relative to the entire towing industry. See TEX. TRANSP. CODE ANN. 

5 643.204(a) (Vernon Supp. 2004-05) (“The governing body of a political subdivision that regulates 

nonconsent towfees . .“) (emphasis added). As such, we take heed of the Fifth Circuit’s caveat 

in Cardinal Towing that in determining an ordinance’s nature, general analysis yields to special 

circumstances. See Cardinal Towing, 180 F.3d at 696 n.5. Specifically, the Cardinal Towing court 

said: 

Cardinal has failed to argue or allege that the structure of 

Bedford towing industry involves special circumstances justifying 

‘(...continued) 

impounded, the police officer investigating such incident OI making such arrest shall request the driver 

of such vehicle to designate a tow truck operator which the driver desires to mnwe such vehicle. 

When the driver has so designated the tow truck operator, the police off&r shall communicate that 

fact immediately to the police communications officer on duty, and it shall be the duty of such 

communications off%~r to call the designated tow truck operator to send a tow truck to the scene or 

site of the incident OT arrest. In the event such driver is physically unable to designate a tow truck 

operator, or refuses to designate one, the police offtcer investigating such incident or making such 

arrest shall notify the police communications office of such fact, and the communications officer shall 

select a privilege holder and call the privilege holder to send a tow tick to the scene or site of such 

incident 01 arrest. 

VICTORIA, TX., CODEOFORDMANCES sec. 23-65(a). 
The Honorable Robert E. Talton - Page 6 (GA-0315) 

deviation from our general analysis. There may be municipalities in 

which police tows constitute such an overwhelming portion of the 

industry that failure to share in the municipality’s business forecloses 

effective competition in other segments of the industry. 

Id. 

Nevertheless, neither the request letter nor the Texas Towing and Storage Association have 

provided us with any facts that suggest there are special circumstances in Victoria that would require 

something more than Cardinal Towing’s general analysis. See Request Letter, sup-u note 1, at 1 and 

attachment B.6 Under this general analysis, we do not believe Victoria is regulating the nonconsent 

tow market, and neither, therefore, do we believe it is impermissibly ignoring section 643.204. 

%Yee also Brief from Larry Cemosek, Chairman, Texas Towing and Storage Association, to Nancy S. Fuller, 

Chair, Opinion Committee, Ofice of Attorney General (Nov. 19,2004) (on file with Opinion Committee). 
The Honorable Robert E. Talton - Page 7 (GA-03 15) 

SUMMARY 

Transportation Code section 643.204 requires a municipality 

that regulates nonconsent tow fees to establish a procedure by which 

a towing company may request that a towing fee study be performed. 

The City of Victoria, Code of Ordinances section 23-75 limits the 

maximum fee that a towing company can assess for police-initiated 

nonconsent tows. The City of Victoria’s ordinance does not appear 

to regulate nonconsent tow fees. The ordinance is designed to create 

efficiencies for the city, and its narrow scope, which controls only a 

portion of the nonconsent tow market, defeats the inference that its 

primary goal is to encourage a general policy rather than address a 

specific proprietary problem. Thus, Victoria is not impermissibly 

ignoring Transportation Code section 643.204. 

BARRY R. MCBEE 

First Assistant Attorney General 

DON R. WILLETT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Daniel C. Bradford 

Assistant Attorney General, Opinion Committee