                                March 13, 1987




 Honorable Erwin Barton                            Opinion No. ~~-644
 Chairman
 Human services collmlittee                       Re: Municipal regulation           of the
 Texas House of Representatives                   towing industry
 P. 0. Box 2910
 Austin, Texas   78769

 Dear Representative       Barton:

      You ask several questions            about municipal regulation   of intra-
 city 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
  intra-city    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 way not, however, conflict           with state law.      city of
  Brookside Village v. Coaeau. 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);     R-1071
  (1977).

         Several state statutes        affect    the towing industry.          See V.T.C.S.
 art. 6701d. §§20B (defining "tow-away operation");                   106 (llzatlons       as
 to trailers      and towing);       134A     (mirrors);    art.     67Olg-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
 67Olg-1 and 67Olg-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, 026.            Therefore,     we cannot say that the
 statutes     cited    above preclude           home-rule     cities      from regulating
 intra-city     towing.      As indicated,        however, city        regulations    cannot
 conflict    with state law.        See
                                    -      Attorney    General    Opinion    H-1071   (local



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Eonorable   Erwin Barton - Page 2        (JM-644)




ordinance that is stricter         than general     statute    is   not   inconsistent
with state statute).

       Your second question       is whether the Railroad              Comisslon     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 incon-
sistent   with statutory     provisions.       Bexar County Bail Bond Board v.
Deckard. 604 S.W.2d 214. 216 (Tex. Civ. Am. - San Antonio 1980. no
writ).    The Railroad Co&ission         has no express authority          to regulate
the towing industry.         See generally        V.T.C.S.    art.    6445 (power of
Railroad Cosaaission); Nat. Res. Code 181.051 (jurisdiction                of Railroad
Colmnission);    Nat. Res.      Code 18111.001        through      113.236    (Railroad
Comnission regulation      of specific      businesses      and occupations).        See
also Tex. Const. art. X, 02, Interpretive                Commentary (expansion?
aroad      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     intra-city    towing.    We do caution.     however,   that
although no damages may be recovered           against   cities under federal
antitrust    laws, a city’s    regulatory   activity   way be enjoined   if it
violates   those laws.     See 15 U.S.C. $35(a) (Supp. II 1984); see also
Rove&amp & Mackerron,municipal            Regulation   and Federal   Antitrust
Policy, 32 UCLAL. hV. 719 (1985).

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




                                                 JIM     MATTOX
                                                 Attorney General of Texas


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Honorable Erwin Barton - Page 3 (J&644j




JACK HIGRTOWER
First Assistant Attorney   General

MARYKELLER
Executive Assistant   Attorney   General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General




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