   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 684.08 1(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. 8 684.081(a) (Vernon
1999). Likewise, section 684.082(a) declares that “[a] towing companymaynot        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. 8 684.082(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
46[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 682.082(a) bars a towing
company from providing free of charge the services described “in connection with the removal of



        ‘Letter from Honorable Clyde Alexander, Chairman, House Committee on Transportation, to Honorable John
Cornyn, Texas Attorney General (Mar. 25,2002) ( on f 11e with Opinion Committee) [hereinafter Request Letter].

           2Brief from Patrick   Johnson,   to Opinion   Committee,   Office of the Attorney   General   at 2 (May 07, 2002)
[hereinafter Johnson Brief).
The Honorable    Clyde Alexander     - Page 2        (JC-0554)




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]11 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.CODEANN. 8 684.081(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.
The Honorable    Clyde Alexander    - Page 3        (JC-0554)




          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.CODEANN. 8 684.085
 (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. 9 684.082(a). By the same token, section
 684.08 1(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.
 0 684.081(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 GRIM.PROC.ANN. art.
4.1 l(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]11 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).
The Honorable   Clyde Alexander    - Page 4       (JC-0554)




                                       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 main-
                tenance, 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.




                                              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
