Can a towing company give a parking lot or apartment complex free services in exchange for the towing contract?

Plain-English summary

The chairman of the House Transportation Committee asked the Attorney General about chapter 684 of the Transportation Code, which regulates towing companies and parking facilities. The trigger was a marketing pitch: some towing companies were offering parking lot owners and operators free services, such as roadside assistance for employees, parking-space striping, fire-lane markings, red-curb painting, and general lot maintenance, all bundled into a "property management package" at no charge, in exchange for the towing business. Restriping a 500-space lot, the request noted, runs around $2,500. The committee asked three questions: does giving those free services violate the statute, does the penalty reach both the towing company and the parking facility owner, and who enforces it.

The Attorney General answered all three. On the first, section 684.082(a) forbids a towing company from directly or indirectly giving a parking facility owner "anything of value" in connection with removing vehicles, and the matching section 684.081(a) forbids the owner from accepting it. Relying on a 1995 opinion that had treated even a roughly twenty-dollar sign as a thing of value, the opinion concluded that the larger package of free services plainly qualifies as a thing of value, so giving it away violates the statute. The opinion also rejected the idea that "in connection with the removal of a vehicle" means a particular tow; quoting the earlier opinion, it read the phrase to cover the whole contract and arrangements between the facility owner and the towing company, because reading it narrowly would allow exactly the kickbacks the statute was meant to stop.

On the second question, the opinion held that the fine in section 684.085, not less than $200 and not more than $500, applies to both halves of the prohibited transaction. The statute criminalizes both giving (the towing company) and accepting (the parking facility owner). On the third, the opinion explained that a violation punishable by fine only falls within the original jurisdiction of justice courts, with municipal courts having concurrent jurisdiction for offenses arising within the city. In justice court, both county and district attorneys may represent the State; in municipal court, the city attorney has the duty to prosecute and the county attorney has the right but not the duty.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Towing companies (what the opinion held): The opinion held that giving a parking facility owner free striping, fire-lane markings, lot maintenance, roadside assistance, or similar services tied to a towing contract was a prohibited "thing of value" under section 684.082(a), and that the towing company, as the giver, was subject to the chapter's fine.

Parking facility owners and operators, including apartment complexes (what the opinion held): The opinion held that accepting those free services violated section 684.081(a), and that the owner, as the recipient, faced the same $200-to-$500 fine as the towing company.

Local prosecutors (what the opinion held): The opinion held that the fine was enforced in municipal and justice of the peace courts. In municipal court the city attorney had the duty to prosecute and the county attorney the option to; in justice court both county and district attorneys could represent the State.

Common questions

Can a towing company throw in free lot striping or maintenance to win the towing contract?
Under this opinion, no. The Attorney General concluded those free services are a "thing of value" that section 684.082(a) bars a towing company from giving a parking facility owner in connection with vehicle removals.

Does it matter that the services are not tied to a specific tow?
The opinion said it does not. It read "in connection with the removal of a vehicle" to cover the whole contract between the parties, not individual tows, precisely so the arrangement could not be used to dodge the kickback ban.

Who can get fined, the towing company or the lot owner?
Both. The opinion held the fine applies to the giver (the towing company) and the recipient (the parking facility owner) alike.

Who enforces the fine and in what court?
Local prosecutors, in municipal and justice of the peace courts. The opinion explained that the city attorney prosecutes in municipal court, while county and district attorneys may handle justice-court cases.

Background and statutory framework

Subchapter E of chapter 684 of the Transportation Code regulates towing companies and parking facilities. Section 684.081(a) provides that a parking facility owner may not directly or indirectly accept anything of value from a towing company in connection with the removal of a vehicle from a parking facility, and section 684.082(a) provides that a towing company may not directly or indirectly give anything of value to a parking facility owner in connection with such a removal. Tex. Transp. Code Ann. §§ 684.081(a), 684.082(a) (Vernon 1999). In Attorney General Opinion DM-330 (1995), the office had construed "anything of value" in the predecessor statute to bar a towing company from furnishing a roughly twenty-dollar sign free of charge, and had declined to read "in connection with the removal of a vehicle" as limited to particular removals, reading it instead to reach the whole contract and incidental arrangements. The opinion applied that reasoning to conclude that free striping, fire-lane markings, lot maintenance, and roadside assistance are things of value whose free provision violates section 684.082(a).

Section 684.085 makes a violation of the chapter punishable by a fine of not less than $200 or more than $500. Tex. Transp. Code Ann. § 684.085 (Vernon 1999). Because section 684.082(a) bars the towing company's gift and section 684.081(a) bars the owner's acceptance, the opinion concluded the fine reaches both parties to the transaction. On enforcement, justice courts have original jurisdiction in criminal cases punishable by fine only, and municipal courts have concurrent jurisdiction over fine-only offenses arising within the municipality. Tex. Code Crim. Proc. Ann. arts. 4.11(a), 4.14(b) (Vernon Supp. 2002). Both county and district attorneys may represent the State in justice court. Tex. Const. art. V, § 21; Tex. Code Crim. Proc. Ann. art. 2.02 (Vernon Supp. 2002). In municipal court, proceedings are conducted by the city attorney or a deputy city attorney, and the county attorney may also represent the State if he desires. Tex. Code Crim. Proc. Ann. art. 45.201(a), (b). As the Texas Court of Criminal Appeals put it in Aguirre v. State, in the municipal court the city attorney has the right and duty to prosecute, and the county attorney has the right but not a duty. Aguirre v. State, 22 S.W.3d 463, 468 (Tex. 1999).

Citations

Statutes:

• Tex. Transp. Code Ann. ch. 684
• Tex. Transp. Code Ann. § 684.081(a) (Vernon 1999)
• Tex. Transp. Code Ann. § 684.082(a)
• Tex. Transp. Code Ann. § 684.085 (Vernon 1999)
• Tex. Code Crim. Proc. Ann. art. 4.11(a) (Vernon Supp. 2002)
• Tex. Code Crim. Proc. Ann. art. 4.14(b)
• Tex. Code Crim. Proc. Ann. art. 2.02 (Vernon Supp. 2002)
• Tex. Code Crim. Proc. Ann. art. 45.201(a)
• Tex. Code Crim. Proc. Ann. art. 45.201(b)
• Tex. Const. art. V, § 21

Cases:

• Aguirre v. State, 22 S.W.3d 463, 468 (Tex. 1999)

Prior Attorney General materials referenced: Tex. Att'y Gen. Op. No. DM-330 (1995).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0554
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0554.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN

September 12, 2002

The Honorable Clyde Alexander Opinion No. JC-0554
Chairman
House Committee on Transportation Re: Whether a towing company may provide
Texas House of Representatives certain services for the owner of a parking facility,
P.O. Box 2910 and related questions (RQ-0528-JC)
Austin, Texas 78768-2910

Dear Representative Alexander:[1]

You ask several questions about chapter 684 of the Transportation Code, which provides for regulation of towing companies and parking facilities. First, you inquire whether section 684.082(a) prohibits a towing company from providing free of charge to the owner of a parking facility "services such as roadside assistance or lot maintenance, including parking space striping and fire lane markings." We conclude that it does. You also ask whether the penalty attached to violations of chapter 684 is applicable to both parking facility owners and towing companies. We conclude that it is. Finally, you ask what agency or entity has the authority to enforce section 684.085, which imposes a fine for violations of chapter 684. We conclude that this statute may be enforced by various local prosecutors in municipal or justice of the peace courts.

Subchapter E of chapter 684 of the Transportation Code deals with the regulation of towing companies and parking facilities. Section 684.081(a) provides that "[a] parking facility owner may not directly or indirectly accept anything of value from a towing company in connection with the removal of a vehicle from a parking facility." TEX. TRANSP. CODE ANN. § 684.081(a) (Vernon 1999). Likewise, section 684.082(a) declares that "[a] towing company may not directly or indirectly give anything of value to a parking facility owner in connection with the removal of a vehicle from a parking facility." Id. § 684.082(a). A brief submitted to this office indicates that some towing companies are offering to furnish "free parking lot striping, fire lane markings, lot maintenance, and roadside assistance for employees to parking facility owners or operators."[2] The letter contends that "[t]he cost to restripe a parking lot for an apartment complex with 500 parking spaces is around $2,500." Johnson Brief, supra note 2. You first ask whether section 684.082(a) bars a towing company from providing free of charge the services described "in connection with the removal of a vehicle from a parking facility." Request Letter, supra note 1. The answer to this question depends upon whether such services constitute "anything of value," in contravention of section 684.082(a).

In Attorney General Opinion DM-330 (1995), this office considered whether the predecessor statute of section 684.082(a) was violated by a towing company when it provided a sign of the value of approximately twenty dollars to a parking facility. The opinion construed the term "anything of value" as prohibiting the furnishing of such a sign free of charge:

The statute would plainly prevent a towing company owner from giving the parking lot owner a twenty-dollar bill, or a twenty-dollar loan. There is no legal difference between the bill or loan, and the sign. A sign of this sort has a cash value, and is therefore a thing of value for the purposes of the statute.

Tex. Att'y Gen. Op. No. DM-330 (1995) at 2. The opinion also rejected the suggestion that the gift of such a sign might not be "in connection with the removal of a vehicle from a parking facility." If a twenty-dollar sign is a "thing of value," we believe it is clear that the additional services that you describe constitute a "thing of value," whose free-of-charge provision to parking facility owners would violate the prohibition of section 684.082(a).

The advertising material submitted with the Johnson Brief includes such items as "lot maintenance for parking space striping, fire lane markings and red curb painting, handicap markings and decal on pavement, no parking zones, loading and unloading zones, and reserved and/or assigned parking markings and much, much more," and "[a]ll of this at No Charge." Johnson Brief, supra note 2. Furthermore, the advertisement purports to offer these services as part of a "property management package." Id. In our opinion, it is not permissible to offer such additional services at no charge if the services are connected to "the removal of a vehicle from a parking facility." See TEX. TRANSP. CODE ANN. § 684.081(a) (Vernon 1999). Attorney General Opinion DM-330 also addressed this matter:

We decline to read this phrase [in connection with the removal of a vehicle from a parking facility] to refer to particular removals. In our view, it refers to the whole contract between the facility owner and the towing company and the arrangements incident thereto. To read the phrase otherwise would permit the sort of kickbacks the statute was designed to prevent, on the grounds that they did not relate to particular removals. Obviously, this is not what the legislature intended.

Tex. Att'y Gen. Op. No. DM-330 (1995) at 2. We too decline to read the phrase in question to refer to particular removals. As a result, the additional free services of which you inquire may not be offered in connection with the removal of vehicles from a parking facility.

Section 684.085 of the Transportation Code declares that "[a] violation of this chapter is punishable by a fine of not less than $200 or more than $500." TEX. TRANSP. CODE ANN. § 684.085 (Vernon 1999). You ask whether this penalty provision is applicable both to towing companies and to parking facility owners. As we have indicated, section 684.082(a) prohibits a towing company from directly or indirectly giving "anything of value" to a parking facility owner "in connection with the removal of a vehicle from a parking facility." Id. § 684.082(a). By the same token, section 684.081(a) bars a parking facility owner from directly or indirectly accepting "anything of value" from a towing company "in connection with the removal of a vehicle from a parking facility." Id. § 684.081(a). Thus, section 684.085 criminalizes both aspects of such a transaction. It is equally applicable to the donor, as exemplified by the towing company, and to the donee, in the person of the parking facility owner.

Finally, you ask about the enforcement of section 684.085. Justice courts have original jurisdiction "in criminal cases . . . punishable by fine only." TEX. CODE CRIM. PROC. ANN. art. 4.11(a) (Vernon Supp. 2002). Municipal courts "have concurrent jurisdiction with the justice court of a precinct in which the municipality is located in all criminal cases arising under state law that . . . arise within the territorial limits of the municipality and are punishable by fine only." Id. art. 4.14(b). In justice court, both county and district attorneys are authorized to represent the state in criminal prosecutions. TEX. CONST. art. V, § 21. In general, however, the county attorney is required to "attend the terms of court in his county below the grade of district court, and shall represent the State in all criminal cases under examination and prosecution in said county." TEX. CODE CRIM. PROC. ANN. art. 2.02 (Vernon Supp. 2002). Article 45.201 of the Code of Criminal Procedure provides that "[a]ll proceedings in a municipal court shall be conducted by the city attorney of the municipality or by a deputy city attorney." Id. art. 45.201(a). In addition, the county attorney, if he so desires, may "also represent the state in such prosecutions." Id. art. 45.201(b). As the Court of Criminal Appeals declared in Aguirre v. State, "the responsibility and authority for municipal court prosecutions is clear: In the municipal court the city attorney has the right and duty to prosecute, and the county attorney has the right, but not a duty, to prosecute." Aguirre v. State, 22 S.W.3d 463, 468 (Tex. 1999).

SUMMARY

Section 684.082(a) of the Transportation Code prohibits a towing company from providing free of charge to the owner of a parking facility services such as roadside assistance or lot maintenance, including parking space striping and fire lane markings in connection with the removal of vehicles from a parking facility. The penalty attached to violations of chapter 684 is applicable to both parking facility owners and towing companies. Various local prosecutors are responsible for the enforcement of this statute in municipal and justice courts.

Very truly yours,

JOHN CORNYN
Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Clyde Alexander, Chairman, House Committee on Transportation, to Honorable John Cornyn, Texas Attorney General (Mar. 25, 2002) (on file with Opinion Committee) [hereinafter Request Letter].

[2] Brief from Patrick Johnson, to Opinion Committee, Office of the Attorney General at 2 (May 07, 2002) [hereinafter Johnson Brief].