  .- OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

    JOHN     CORNYN




                                                March 25,2002



The Honorable Clyde Alexander                            Opinion No. JC-048 1
Chair, House Committee on Transportation
Texas House of Representatives                           Re: Whether Harris County may prohibit a tow
P.O. Box 2910                                            truck from having auxiliary stop and tail lamps in
Austin, Texas 78768-2910                                 or under the factory-mounted light bar, and related
                                                         question (RQ-0441 -JC)


Dear Representative     Alexander:

         You ask whether Harris County may “prohibit by rule or ordinance, a tow truck from having
auxiliary stop and tail lamps in or under the factory mounted light bar.“* You also ask whether
Harris County may “prohibit by rule or ordinance, a tow truck from having a red or blue lens in the
emergency lights.” Request Letter, note 1, at 1. For the reasons set forth below, we answer both
questions in the affirmative.

        The controversy before us arises because “[sleveral tow truck companies in Harris County
are mounting standard manufacturer’s light bars on their vehicles which contain the required lights
by law. However, for safety reasons, the light bars also contain auxiliary stop and tail lamps.
Another issue is the color of the lamps on the light bars.” Id. You indicate that “[tlhe tow trucks
are being cited by Harris County officials for not having amber colored lights, but rather having blue
and red colored lamps.” Id.

        Since 1987, Harris County has been the subject of a statute pertaining to the regulation of
towing companies. See Act of July 20, 1987,7Oth Leg., 2d C.S., ch. 41, 5 1, 1987 Tex. Gen. Laws
128, 129, 130. The most recent version of that statute, codified as section 545.306 of the
Transportation Code, states as follows:

                      (a) The commissioners court of a county with a population of 3.3
                 million or more shall by ordinance provide for the licensing of or the
                 granting of a permit to a person to remove or store a vehicle
                 authorized by Section 545.305 to be removed in an unincorporated
                 area of the county. The ordinance must include rules to ensure the



           ‘Letter from Honorable Clyde Alexander, Chair, House Committee on Transportation,        Texas House of
Representatives, to Honorable John Comyn, Texas Attorney General (Sept. 2 1,200l) (on file with Opinion Committee)
[hereinafter Request Letter].
The Honorable    Clyde Alexander    - Page 2 (JC-0481)




                protection of thepublic and the safe and efficient operation of towing
                and storage services in the county. The sheriff shall determine the
                rules included in the ordinance with the review and consent of the
                commissioners court.

                     (b) The commissioners    court shall set the fee for the license or
                permit in an amount that reasonably offsets the costs of enforcing the
                ordinance. The commissioners court shall use each license or permit
                fee to pay salaries and expenses of the sheriffs office for conducting
                inspections to determine compliance with the ordinance and laws
                relating to dealers in scrap metal and salvage.

TEX. TRANSP. CODE ANN.     $ 545.306 (Vernon Supp. 2002) (emphasis added). Section 545.305,
entitled “Removal of Unlawfully Stopped Vehicle,” authorizes a peace officer to remove or to
require the removal of a vehicle from the highway if the vehicle is found to be within one of
nine categories, including one in which the vehicle “is disabled” or constitutes a hazard. See id.
5 545.305 (Vernon 1999).

         Counties are ordinarily governmental bodies of limited jurisdiction and may enact regulations
only when specifically permitted to do so by state law. See Canales v. Laughlin, 214 S.W.2d 45 1,
453 (Tex. 1948); TEX. CONST. art. V, 5 18; Tex. Att’y Gen. Op. Nos. DM-183 (1992)
(commissioners     court authorized to regulate smoking on county property); JM-1098 (1989)
(commissioners court authorized to regulate smoking in county jail). Section 545.306 accords to
Harris County a special status with regard to the regulation of towing and storage services. Pursuant
thereto, the Commissioners Court of Harris County has promulgated an extensive regulatory scheme
relating to nonconsent towing and storage services. The regulations describe a permitting and
application process; identification, insurance, and safety requirements for tow trucks; specifications
for storage lots; and penalties and fees. See HARRIS COUNTY, TEX., HARRIS COUNTYWRECKER
REGULATIONSFOR LAW ENFORCEMENTNON CONSENTTOWING AND STORAGE SERVICES(1989) (on
file with Opinion Committee). A tow truck owner that wishes to perform nonconsent tows “must
have its own permit.” See id. § C. 1. “A permit allows a tow truck to tow nonconsent vehicles from
law enforcement scenes in the unincorporated areas of Harris County.” Id. 8 C.3. A person who
wishes to obtain such a permit is required to “file a written application with the [Sheriffs]
Department annually on a form provided by the Department for that purpose.                The written
application form shall be accompanied by a certificate of insurance, the required fees, and a copy of
the registration.” Id. 8 D.l. The particular regulation of which you inquire is listed as a “safety
requirement.” It provides:

                All wreckers must be equipped with emergency lights visible from all
                directions and shall be rotating or strobe type lights. The lights shall
                be amber in color.

Id. 8 H.3.k.
The Honorable    Clyde Alexander     - Page 3 (JC-0481)




       In 2001, the legislature in House Bill 168 1 amended section 643.201 of the Transportation
Code to provide, in relevant part:

                    (a) In addition to the registration requirements of Subchapter B,
                a political subdivision of this state may regulate the operation of a
                tow truck to the extent allowed by federal law.




                     (c) A political subdivision may require the registration of a tow
                truck that performs a nonconsent tow in the political subdivision,
                regardless of whether the owner of the tow truck has a place of
                business in the territory of the political subdivision.




                    (e) In this section:




                         (2) “Consent tow” means any tow of a motor vehicle initiated
                by the owner or operator of the vehicle or by a person who has
                possession, custody, or control of the vehicle. The term does not
                include a tow of a motor vehicle initiated by a peace officer
                investigating a traffic accident or a traffic incident that involves the
                vehicle.




                         (4) “Nonconsent   tow” means any tow of a motor vehicle that
                is not a consent tow.

TEX. TRANSP.CODE ANN. 8 643.201      (Vernon Supp. 2002) (emphasis added) (footnote omitted). Prior
to the 77th Legislative Session, section 643.20 1 had applied only to a “municipality.” House Bill
168 1 extended the scope of the statute “to include all political subdivisions of the state,” a category
that clearly includes counties. HOUSE COMM. ONTRANSPORTATION,          BILL ANALYSIS, Tex. H.B. 168 1,
77th Leg., R.S. (2001) (enrolled version). The bill also redefined the terrn “consent tow” to exclude
“a tow of a motor vehicle initiated by a peace officer investigating a traffic accident or a traffic
incident that involves the vehicle,” and redefined “nonconsent tow” as “any tow of a motor vehicle
that is not a consent tow.” See TEX. TRANSP.CODE ANN. 8 643.201(e)(2), (4) (Vernon Supp. 2002).

        Section 545.306 of the Transportation Code, which accords Harris County a special status
with regard to the regulation of towing and storage services for nonconsent tows, and section
The Honorable        Clyde Alexander         - Page 4 (JC-0481)




643.201 thereof, which authorizes political subdivisions, including counties, to prescribe regulations
for nonconsent tows “to the extent allowed by federal law,” are thus cumulative with regard to
regulation of nonconsent tows by Harris County. See id. $4 545.306(a) (addressing counties with
population of 3.3 million or more, Harris County population is 3,400,578*); 643.201 (a) (Vernon
Supp. 2002). As a result, we must look to federal law to determine the validity of Harris County’s
requirement that wreckers performing nonconsent tows “be equipped with emergency lights visible
from all directions”; that those lights “be rotating or strobe type lights”; and that the lights “be amber
in color.”

           Subsection     (c)(l) of 49 U.S.C. 5 14501 provides:

                             (1) General rule.--Except as provided in paragraphs (2) and
                    (3)’ a State, political subdivision of a State, or political authority of
                    2 or more states may not enact or enforce a law, regulation, or other
                    provision having the force and effect of law related to a price, route,
                    or service of any motor carrier (other than a carrier affiliated with a
                    direct air carrier covered by section 417 13(b)(4)) or any motor private
                    carrier, broker, or freight forwarder with respect to the transportation
                    of property.

49 U.S.C. 5 14501 (1994). In Cardinal Towing and Auto Repair, Inc. v. City of Bedford, 180 F.3d
686 (5th Cir. 1999)’ a case involving nonconsensual towing services performed by a municipality,
the Court of Appeals for the Fifth Circuit explained the background of this statute. A part of the
move by Congress in 1994 “to deregulate the motor carrier industry,” subsection 14501 (c) preempts
“most state and local regulation” thereof Cardinal Towing, 180 F.3d at 690.

        In Cardinal Towing, an unsuccessful bidder for a contract to provide nonconsent towing
services brought an action against the city of Bedford, on the grounds, inter alia, that the ordinance
that permitted the contracting was preempted by federal law. See id. at 688-90. In 1995, the city,
by ordinance, had decided to “contract with a single company to perform all of the tows requested
by the City police.” Id. at 689. The ordinance was limited “to purely nonconsensual situations in
which the Bedford police requested a tow.” Id. Applicants for the contract “were required to
comply with a number of requirements,” including “a guarantee of response time within fifteen
minutes”; “access to a class eight wrecker”; “maintenance of an office at the company’s vehicle
storage facility”; “computerized record keeping”; and specific levels of insurance coverage. Id.
The city contended that “the ordinance was not regulation, but rather an ordinary contracting
decision of a proprietary nature and thus . . . outside the scope of section 14501 (c) preemption.” Id.
at 690. According to the city’s argument, “the ordinance and contract specifications were designed
only to procure services that the city itself needed, not to regulate the conduct of others. Such




          2See BUREAUOF THE CENSUS,U.S. DEP’T OF COMMERCE,2000 CENSUSOF POPULATION,General      Population
Characteristics:   Texas, available at http://www.census.gov/.
The Honorable    Clyde Alexander    - Page 5 (JC-0481)




innocuous market participation . . . does not constitute a law, regulation, or provision     having the
force and effect of law under section 14501 (c).” Id. at 691. The court agreed.

         The court called attention to the traditional distinction between regulations and those actions
that a governmental body takes in its proprietary capacity: “actions taken to serve the government’s
own needs rather than those of society as a whole.” Id. The court noted the United States Supreme
Court’s observation that “when a state or municipality acts as a participant in the market and does
so in a narrow and focused manner consistent with the behavior of other market participants, such
action does not constitute regulation subject to preemption.” Id. Applying this principle to the facts
before it, the Cardinal Towing court found that:

                [t]he City’s ordinance and contract specifications had an obvious
                connection to the City’s narrow proprietary interest in its own
                efficient procurement of services. Selecting a single company to
                perform the City’s tows clarified responsibility,            minimized
                administrative   confusion, and allowed for the setting and easy
                supervision of a unitary quality standard for that particular work for
                the City.

Id. at 693. The court further observed that, while the structure obtained under the Bedford ordinance
is “somewhat distorted by the fact a third party [the owner of the towed vehicle] gets left with the
bill, [the scheme] is in its relevant essentials an ordinary market for services.” Id. at 697. In such
an “oddly bifurcated market, the party requesting the tow is undeniably also acting as a consumer,
and when the city requests a tow it should be treated as a consumer.” Id. Consequently, “the City’s
role here is of a proprietary nature, notwithstanding the fact that a third party pays for the service.”
Id.

         While Cardinal Towing involved an ordinance that permitted the award of a nonconsensual
towing contract only to a single bidder, a subsequent case from the court of appeals for the Sixth
Circuit reached the same result on the basis of a factual scenario that more closely resembles the
situation in Harris County. In Petrey v. City of Toledo, 246 F.3d 548 (6th Cir. 2001)’ a case cited
with approval in the Fifth Circuit case of Stucky v. City of San Antonio, 260 F.3d 424’439-40 (5th
Cir. 2001)’ an ordinance of the City of Toledo, Ohio, provided that a holder of a Class A towing
license from the city authorized “the holder to conduct non-consensual tows ordered by the Toledo
Police Department.” Petrey, 246 F.3d at 55 1. To obtain a Class A license, an applicant was required
to pay a filing fee, maintain significant insurance coverage, ensure the availability of at least three
approved tow trucks, provide storage space for at least one hundred vehicles, and maintain a valid
special use permit for any licensed premises and auxiliary storage sites. See id. Petrey challenged
a number of these requirements. The court of appeals specifically joined the Fifth Circuit in finding
that “Toledo, when acting as a market participant, may set certain standards and ultimately choose
The Honorable   Clyde Alexander     - Page 6 (JC-0481)




those towers which are best able to perform non-consensual police tows for it, without being subject
to 145Ol(c)‘s preemption provisions.” Id. at 555. The court continued:

                Section 14501 (c)( 1) does not prevent Toledo from choosing the
                towers with which it will do business. . . . By setting standards for
                those companies who will be allowed to conduct police-ordered tows,
                Toledo can ensure that there will be sufficient space for the vehicles      j
                it needs to have towed, that any storage facilities to which the cars are
                towed will be safe, and that the drivers who operate the tow trucks
                will have the training to tow vehicles safely and efficiently.

Id. at 558. As a result, the court concluded   that:

                the challenged Toledo towing provisions dealing solely with those
                towers wishing to perform non-consensual police tows for the City,
                along with the Rule limiting the number of police towers to eleven,
                are proprietary in nature, do not constitute regulation or have
                the force and effect of law, and thus are not preempted by 49 U.S.C.
                g 14501 (c)( 1).

Id. at 559.

         The Toledo city ordinance considered in Petrey is similar to the Harris County ordinance that
is the subject of your request. In both cases, the governmental body imposes a permitting or
licensing scheme on those tow truck operators who wish to perform nonconsent police tows. Both
ordinances require written applications, the payment of fees, proof of insurance coverage, and
availability of storage space. On the basis of the analysis adopted by the courts in Cardinal Towing
and Petrey, and other information provided to us, it appears that Harris County’s regulations
regarding nonconsent towing and storage services are proprietary in nature and thus not preempted
by 49 U.S.C. 8 14501(c), and we believe a court would so hold.

         Both section 545.306 ofthe Transportation Code, which grants to Harris County the authority
to regulate towing and storage services, and section 643.201, which permits political subdivisions,
including counties, to prescribe regulations for nonconsent tows “to the extent allowed by federal
law,” appear to authorize the provisions of the nonconsent towing and storage services ordinance
adopted by Harris County, including section H.3.k.’ which requires that wreckers performing
nonconsent tows “be equipped with emergency lights visible from all directions”; that those lights
“be rotating or strobe type lights”; and that “the lights . . . be amber in color.” HARRIS COUNTY,
TEX., HARRIS COUNTYWRECKERREGULATIONSFORLAW ENFORCEMENT                    NON CONSENTTOWING AND
STORAGESERVICES8 H.3.k (1989). Assuming that Harris County’s nonconsent towing regulations
are in all aspects proprietary in nature, Harris County may, by rule or ordinance, prohibit a tow truck
operator performing nonconsent tows from having auxiliary stop and tail lamps in or under the
The Honorable   Clyde Alexander     - Page 7 (JC-0481)




factory mounted light bar. In addition, Harris County may prohibit such a tow truck from having
a red or blue lens in the emergency lights.

        We must also consider, however, general legislation enacted by the State of Texas with
regard to the lighting equipment permitted on tow trucks. Subsection (d) of section 547.305 of the
Transportation Code was amended in 1999 to provide, in relevant part:

                    (d) A vehicle may be equipped with alternately flashing lighting
                equipment described by Section 547.701 or 547.702 only if the
                vehicle is:




                        (4) a tow truck while under the direction of a law enforcement
                officer at the scene of an accident or while hooking up to a disabled
                vehicle on a roadway; or

                        (5) a tow truck with a mounted light bar which has turn
                signals and stop lamps in addition to those required by Sections
                547.322, 547.323, and 547.324, Transportation Code.

TEX. TRANSP. CODE ANN. 8 547.305(d)(4),    (5) (V emon Supp. 2002). Section 547.702, which relates
to additional equipment   for authorized emergency vehicles, provides in relevant part:

                    (c) Except as provided by this section, an authorized emergency
                vehicle shall be equipped with signal lamps that:

                       (1) are mounted as high and as widely spaced laterally as
                   practicable;

                       (2) display four alternately flashing red lights, two located
                   on the front at the same level and two located on the rear at
                   the same level; and

                       (3) emit a light visible at a distance of 500 feet in normal
                   sunlight.

Id. 8 547.702(c) (Vernon 1999). Thus, a tow truck with a mounted light bar is authorized to have
signal lamps that “display four alternately flashing red lights, two located on the front at the same
level and two located on the rear at the same level.” Id. 9 547.702(c)(2).
The Honorable    Clyde Alexander    - Page 8 (JC-0481)




        The bill analysis for House Bill 3366, which enacted subdivision      (d)(5) of section 547.305
in 1999, explains the legislature’s reasoning:

                Currently, federal lighting regulation allows for accessory lights on
                motor carriers in addition to required taillamps and turn signals. Tow
                trucks are now equipped with light bars that have red turn signals and
                stop lights, so that other drivers may be aware of changes in the speed
                and direction of the tow truck even when the rear of the truck is
                obscured because it is towing another vehicle. Additionally, these
                tow lights are currently required to be placed on the vehicle being
                towed and not on the tow truck. The purpose of this bill is to allow
                tow trucks [to] be equipped with additional lighting equipment.

                H.B. 3366 allows a tow truck to be equipped with alternately flashing
                lighting equipment, in addition to its required mounted light bar.




                Section 1. Amends Section 547.305(d), Transportation Code, to
                authorize a tow truck with a mounted light bar which has turn signals
                and stop lamps in addition to those required by Sections 547.322
                (Taillamps Required), 547.323 (Stoplamps Required), and 547.324
                (Turn Signal Lamps Required), Transportation Code, to be equipped
                with alternately flashing lighting equipment described by Sections
                547.701 (Additional Equipment Requirements for School Buses) or
                547.702 (Additional      Equipment   Requirements    for Authorized
                Emergency Vehicles). Makes nonsubstantive changes.




HOUSE COMM. ON TRANSPORTATION,
                             BILL ANALYSIS, Tex.             H.B. 3366’76th    Leg., R.S. (1999).

         It is settled law that statutes must, if possible, be harmonized in such a way as to give effect
to each. “Generally, courts are to construe statutes so as to harmonize with other relevant laws if
possible.” La Sara Grain Co. v. First Nat ‘1Bank, 673 S.W.2d 558, 565 (Tex. 1984) (citing State
v. Standard Oil Co., 107 S.W.2d 550,559 (Tex. 1937). Subsection 547.305(d) ofthe Transportation
Code does not distinguish between consent and nonconsent tows. Nor does that statute require tow
trucks in general to be equipped with the precise lighting equipment authorized thereby. As the bill
analysis for House Bill 3366 states, “[tlhe purpose of this bill is to allow tow trucks [to] be equipped
with additional lighting equipment.” HOUSECOMM. ONTRANSPORTATION,              BILL ANALYSIS, Tex. H.B.
3366, 76th Leg., R.S. (1999) (emphasis added). On the other hand, section 545.306(a) of the
Transportation Code requires Harris County to “provide for the licensing of or the granting of a
permit to a person to remove or store a vehicle,” and section 643.20 1(a) of the Transportation Code
The Honorable   Clyde Alexander    - Page 9 (JC-0481)




authorizes Harris County to require the regulation of a tow truck that performs nonconsent tows, and
permits Harris County to “regulate the operation of a tow truck to the extent allowed by federal law.”
TEX. TRANSP. CODE ANN. §§ 545.306(a), 643.201(a) (Vernon Supp. 2002). Subsection 14501(c)(l)
of 49 U.S.C., in turn, as construed by recent federal court decisions, imposes no limitations on the
authority of a political subdivision to regulate proprietary nonconsensual towing. See 49 U.S.C.
8 14501(c)(l) (1994).

         Thus, in our view, the statutes may be reconciled by concluding that subsection 547.305(d)
of the Transportation Code permits a tow truck to have the lighting equipment described therein, but
that Harris County, in its regulation of nonconsensual towing, may enact an ordinance that, with
regard to lighting equipment, is at variance with, and prevails over, any conflicting portions of
subsection 547.305(d). In other words, section 643.201 of the Transportation Code, and federal law
carve out an area of regulation of nonconsensual towing by political subdivisions and that area is
exempted from the general lighting specifications authorized by subsection 547.305(d). A county
is, of course, at liberty to comply with those general lighting provisions with regard to
nonconsensual towing. By the same token, Harris County is free to impose different lighting
requirements for nonconsent tows, including the requirement that all the lights “shall be amber in
color.” See HARRISCOUNTY,TEX., HARRISCOUNTYWRECKERREGULATIONSFORLAW ENFORCEMENT
NON CONSENTTOWING AND STORAGESERVICES5 H.3.k (1989).


        Thus, in answer to your specific questions, Harris County may, by rule or ordinance, prohibit
a tow truck operator performing nonconsent tows from having auxiliary stop and tail lamps in or
under the factory-mounted light bar. In addition, Harris County may prohibit a tow truck from
having a red or blue lens in the emergency lights.
The Honorable    Clyde Alexander    - Page   10 (JC-048 1)




                                        SUMMARY

                         Assuming    that Harris County’s      regulations  regarding
                nonconsent towing and storage services are in all aspects proprietary
                in nature, Harris County may, by rule or ordinance, prohibit a tow
                truck operator performing nonconsent tows from having auxiliary stop
                and tail lamps in or under the factory-mounted light bar. In addition,
                Harris County may prohibit a tow truck from having a red or blue lens
                in the emergency lights.

                                               Yo rs ve      trul



                                             4&(-s
                                               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
