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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.  SeeTex. 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.  

Conclusion 

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.  

$22M Judgment against Property Owners and Towing Company

A Maryland class action lawsuit involving private property towing is now sitting in the judgment phase. The result? A win for a class of vehicle owners in the amount of $22,000,000.00.    

The Maryland case of Yang v. G&C Gulf d/b/a G&G Towing involved 25,000 plaintiffs.  The vehicle owners were a class of plaintiffs whose vehicles were towed by G&C Gulf, Inc. (“G&G Towing”).  In November of 2016, the Circuit Court of Montgomery County, Maryland, entered the massive agreed judgment of $22,000,000 against G&G Towing and, on that same day, the court certified the plaintiffs as a class.  This agreement was reached because, according to the websites familiar with the case, G&G Towing agreed to pay $335,000 of the judgment amount to the plaintiff. 

The very next day, the plaintiff class filed an amended complaint. The amended complaint alleged that not only was the towing company liable for the judgment, but also that the property owners from where the vehicles were towed were liable.  This amended complaint requested the court to create a “defendant class” against which the plaintiff class would seek damages that they were unable to recover against G&G Towing.  The court then certified the defendant class.  That class included:  

“All Parking Lot owners, managers and agents who entered into a written contract with G&G Towing for the provision of trespass towing services which resulted in one or more vehicles being towed from the Parking Lot between April 26, 2012 and January 7, 2016.”  

This case later proceeded to mediation, during which an agreement was reached and set for approval by the court on January 4, 2018.   

This case involved tows that occurred over nearly four years. Consider that for just a moment – that every a company performed over a nearly four-year period was reviewed in this lawsuit. Now consider the fact that every property owner for whom that towing company performed towing services was hauled into court as a defendant class member because of an alleged violation of towing laws.  A case like this would certainly be the end of the line for most towing and storage companies in Texas and would likely result in years of litigation between not only the plaintiff and the towing company but also every property owner involved.    

Could this happen to a company in Texas? I believe it is possible. There is always a chance that a class could be certified in Texas if the legal requirements for certification were met. While it is impossible to determine how successful such a case might be, just the possibility of such a case being brought against a small business is a clear indication of the importance of exercising diligence when working in the towing and storage industry.   

Expired Registration Apartment Towing

Two residents at the Baystone Apartments in Houston recently appealed a tow hearing all the way from justice court to the 1st District Court of Appeals. These tenants had sued Baystone Apartments and Houston Central Auto Storage, Inc. for a tow hearing in relation to their Jeep Liberty being towed. The fight in this case was over a lease term that stated vehicles could be towed immediately for expired registration stickers and how that term was affected by the language of the Texas Towing and Booting Act (Chapter 2308 of the Texas Occupations Code).

Facts and Summary of Procedure.

Tenant’s car was towed for expired registration. Tenant recovered the vehicle from the VSF shortly after it was towed and paid for towing and storage ($580.18). Tenant then filed for a tow hearing in JP Court, at which the no one appeared for the other side. Tenant, accordingly, won by default at the tow hearing. The towing company appealed the justice court’s decision to the county court at law, which found probable cause for the tow and entered a take-nothing judgment against the tenant. Tenant then appealed that decision to the 1st District Court of Appeals in Houston.

The Court of Appeals looked at both the language of the apartment lease, the towing policy attached to the lease, and the language of the Towing Act. The reason for the tow was not disputed – a notice sticker had been placed on the tenant’s vehicle and, after four days, the vehicle was towed for expired registration. The apartment lease stated:

“We may have any unauthorized or illegally parked vehicles towed or booted according to state law at the owner or operator’s expense at any time if the vehicle has no current license or registration, and we have given you at least 10 days’ notice that the vehicle will be towed if not removed.”

Lease Agreement

In contrast, the towing policy stated:

“Inoperable Vehicle, Flat Tires, up on Jacks, Wrecked, Broken Windows, For Sale sign, Expired Tags and so on is strictly prohibited anywhere on the property. I understand that failure to comply will result in management towing the vehicle without notice and at the vehicle owner’s expense.”

Towing Policy Addendum

Based on the quotes above, there was already a conflict in the towing policy language when compared to the lease agreement. The language of the Texas Towing and Booting Act, however, also contradicted the towing policy addendum language:

A contract provision providing for the towing from a parking facility of a vehicle that does not display an unexpired license plate or registration insignia is valid only if the provision requires the owner or operator of the vehicle to be given at least 10 days’ written notice that the vehicle will be towed from the parking facility at the vehicle owner’s or operator’s expense if it is not removed from the parking facility.

Tex. Occ. Code § 2308.253.

The court further noted that the Texas Towing and Booting Act states that a lease provision that is in contradiction to the terms of the act is void.

Conclusion – 10 Days’ Notice is Required – No Probable Cause to Tow

In its conclusion, the court found that the 10 day notice requirement in the Towing and Booting Act balances the equities between the property managers, towing companies, and tenants. It provides a reasonable chance to resolve defects with vehicles (such as registration) and allows tenants to comply with lease terms. Accordingly, the court found that the towing company’s failure to comply with the ten day notice requirement in the Towing and Booting Act destroyed probable cause to tow the Tenant’s vehicle. A link to the case is available HERE.

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In each year since 2014, over 3,500 Texans were killed in automobile crashes on Texas Roads. While the specific numbers have varied up and down, the unfortunate trend is that crash fatalities are generally increasing in Texas. In 2014, there were 3,536 automobile crash fatalities in Texas. That number has gone as high as 3,797 in 2016. The most recent year for which data is available from the National Highway Traffic Safety Administration is 2018 which shows 3,642 traffic fatalities in Texas.

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