Could a Texas home-rule city regulate intracity towing and set towing rates, and could the Railroad Commission do the same?

Texas AG Opinion JM-644: Municipal Towing Rates

Plain-English summary

A Texas House committee chair asked four questions about local regulation of intracity towing. The Attorney General concluded that a home-rule city such as Pasadena could regulate towing within the city because the cited state laws did not occupy the entire regulatory field.

Municipal towing rules still had limits. They could not conflict with state law. The opinion also warned that city rate regulation could be enjoined if it violated federal antitrust law, even though damages could not be recovered against the city under the cited federal provision.

The Railroad Commission stood on different footing. As an administrative agency, it needed statutory authority for its rules. The opinion found no express authority allowing the Commission to regulate the towing industry or set towing charges.

The Attorney General did not decide whether a city ordinance created a contract with Emergency Wrecker Permit holders. No particular ordinance or permit system was supplied, and the answer would likely depend on both the ordinance's text and factual questions.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG 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.

Common questions

Could a home-rule city regulate towing within city limits?

Yes. The opinion found no indication that the Legislature had occupied the entire field of towing regulation, although local rules could not conflict with state law.

Could the city set towing rates?

The opinion said state law did not preempt city regulation of intracity towing, including rates, but cautioned that federal antitrust law could support an injunction against unlawful regulation.

Could the Railroad Commission set towing charges?

No. The opinion found no express statutory authority for the Commission to regulate the towing industry or set its rates.

Was a towing ordinance a contract with permit holders?

The opinion did not answer that question in the abstract. It said the issue required a particular ordinance and likely involved facts outside the opinion process.

Background and statutory framework

Home-rule cities derived broad authority directly from the Texas Constitution and looked to state law for limitations rather than affirmative grants. JM-644 reviewed traffic and nonconsensual-towing statutes and found no legislative intent to displace all local towing regulation.

By contrast, the Railroad Commission could exercise only powers given by statute. The cited provisions defining its authority did not include towing-rate regulation.

The opinion's antitrust caution distinguished municipal authority under state law from federal constraints on how that authority could be exercised. It gave no conclusion about any particular Pasadena rate ordinance.

Citations and references

Statutes:

• V.T.C.S. articles 6445, 6701d, 6701g-1, and 6701g-2
• Texas Natural Resources Code sections 81.051 and 111.001 through 113.236
• 15 U.S.C. section 35(a)

Cases:

• 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)
• City of Brookside Village v. Comeau, 633 S.W.2d 790, 796 (Tex. 1982), cert. denied, 459 U.S. 1087 (1982)
• Bexar County Bail Bond Board v. Deckard, 604 S.W.2d 214, 216 (Tex. Civ. App. - San Antonio 1980, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0644
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0644.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

March 13, 1987

Honorable Erwin Barton
Chairman
Human Services Committee
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78769

Opinion No. JM-644

Re: Municipal regulation of the towing industry

Dear Representative Barton:

You ask several questions about municipal regulation of intracity towing. You have provided us with a copy of an article from the Tow Times as background.

Your first question is whether the city of Pasadena may regulate intracity 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 may not, however, conflict with state law. City of Brookside Village v. Comeau, 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); H-1071 (1977).

Several state statutes affect the towing industry. See V.T.C.S. art. 6701d, §§ 20B (defining "tow-away operation"), 106 (limitations as to trailers and towing), 134A (mirrors); art. 6701g-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 6701g-1 and 6701g-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, § 26. Therefore, we cannot say that the statutes cited above preclude home-rule cities from regulating intracity towing. As indicated, however, city regulations cannot conflict with state law. See Attorney General Opinion H-1071 (local ordinance that is stricter than general statute is not inconsistent with state statute).

Your second question is whether the Railroad Commission 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 inconsistent with statutory provisions. Bexar County Bail Bond Board v. Deckard, 604 S.W.2d 214, 216 (Tex. Civ. App. - San Antonio 1980, no writ). The Railroad Commission has no express authority to regulate the towing industry. See generally V.T.C.S. art. 6445 (power of Railroad Commission); Nat. Res. Code § 81.051 (jurisdiction of Railroad Commission); Nat. Res. Code §§ 111.001 through 113.236 (Railroad Commission regulation of specific businesses and occupations). See also Tex. Const. art. X, § 2, Interpretive Commentary (expansion of Railroad 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 intracity towing. We do caution, however, that although no damages may be recovered against cities under federal antitrust laws, a city's regulatory activity may be enjoined if it violates those laws. See 15 U.S.C. § 35(a) (Supp. II 1984); see also Rovett & Mackerron, Municipal Regulation and Federal Antitrust Policy, 32 UCLA L. Rev. 719 (1985).

Your fourth question is whether a city ordinance is considered to be a contract between the city and Emergency Wrecker Permit 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 intracity towing, but municipal regulations must not conflict with state law or violate federal antitrust laws.

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General