                              ATTORNEY GENERAL OF                      TEXAS
                                           GREG        ABBOTT




                                            December 15,2006



The Honorable Robert E. Talton                          Opinion No. GA-0493
Chair, Urban Affairs Committee
Texas House of Representatives                          Re: Whether an “Affidavit of Right of Possession
Post Office Box 2910                                    or Control” may be used only by a member of the
Austin, Texas 787682910                                 registered vehicle owner’s immediate family
                                                        (RQ-0492-GA)

Dear Representative     Talton:

        You indicate that “there is some question as to the proper use of the Texas Department of
Transportation’s Form 1895, ‘Affidavit of Right of Possession or Control,’ [(the “Affidavit”)] with
regard to the release of vehicles from licensed vehicle storage facilities.“’ You thus ask whetherany
person may use the Affidavit to gain possession of a vehicle from a vehicle storage facility or
whether usage is limited to “only.     an immediate family member of the registered~vehicle owner.”
Request Letter, supra note 1, at 1.

         An unauthorized vehicle parked in a parking facility or on certain public roadway areas may
be towed. See TEX. TRANSP. CODE ANN. @ 684.012(a), .0125, .014(a) (Vernon Supp. 2006),
.051-,053 (Vernon 1999); see also id. 5 684.001(l), (4), (6), (7) (Vernon Supp. 2006) (defining
“parking facility, ” “public roadway,” “unauthorized vehicle,” and “vehicle”). These and other
tows that are performed without the vehicle owner’s consent are called “nonconsent tows.” See id.
5 643,201(e)(4) (Vernon Supp. 2006); cJ. id. 5 643.201(e)(2) (defining “consent tow” as “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”). In general, “[a] towing company that makes a
nonconsent tow shall tow the vehicle to a vehicle storage facility. . .” Id. 8 643.206(a). A vehicle
storage facility is operated by a person licensed under Occupations Code chapter 2303. See id.
 @643.206(a), 684.001(S); see also id. § 685.001(l)(defining“vehicle      storage facility” forpurposes
of setting out the rights of stored vehicles’ owners).

         Chapter 2303, Occupations Code, is the Vehicle Storage Facility Act (the “Act”). See TEX.
OCC. CODE a.       3 2303.001 (Vernon 2004). For the Act’s purposes, a vehicle storage facility is a
privately owned “garage, parking lot, or other facility that is used to store or park at least [ten]


         ‘Letter from Honorable Robert E. T&on, Chair, Urban Affairs Committee, Texas House of Representatives,
to Honorable Greg Abbott, Attorney General of Texas, at I (May 18,2006) (on file with the Opinion Committee, also
available arhttp://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Robert E. Talton     - Page 2              (GA-0493)




vehicles each year.” Id. 5 2303.002(S); see also id. § 2303.002(7) (defining “vehicle”). The Act
requires the’Texas Transportation Commission (the “Commission”) to adopt rules establishing
licensing requirements for a person wishing to operate a vehicle storage facility and setting out
sanctions that may be imposed on persons licensed under the Act. See id. 5 2303.05 1. The Texas
Department of Transportation (the “Department”) licenses vehicle storage facilities and enforces the
Act andru~es adopted by the Commission. See id. ;5§2303.052(a), ,201, .202, .25 1, ,301. A person
may not operate a vehicle storage facility without a license issued by the Department under the Act.
See id. 5 2302.101(a).

         The Commission’s rules concerning vehicle storage facilities are set out in title 43, chapter
18, subchapter G of the Texas Administrative Code. See generally 43 TEX. ADMIN. CODE ch. 18,
subch. G (2006) (Tex. Dep’t of Transp., Vehicle Storage Facilities). Section 18.92 sets out technical
requirements with which a vehicle storage facility must comply when releasing a vehicle stored as
the result ofanonconsent   tow. See id. 5 18.92(a) (Tex. Dep’t of Transp., Technical Requirements).
At issue in your request is subsection (a)(3), which requires a licensed vehicle storage facility to
release a vehicle to an individual who presents certain identifying information:

                        [T]he licensee shall allow the vehicle owner or his/her
               authorized representative to obtain possession of the vehicle at any
               time between the hours listed on the facility information sign      ,
               upon payment of all fees due, presentation of valid identification
               (Texas drivers license or other state or federally issued photo
               identification), and upon presentation of:

                           (A) a notarized power-of-attorney;

                           (B) a court order;

                           (C) a certificate of title;

                           (D) a tax collector’s receipt and a vehicle. registration
                renewal card accompamed by a conforming identification;

                           (E) notarized proof of loss claim of theft from an
                insurance company to show a right to possession;

                             (F) positive name and address information corresponding
                to that contained in the tiles of the [Dlepartment’s Vehicle Titles and
                Registration Division; or

                            (G) ‘a [Dlepartment approved Affidavit of Right of
                Possession and Control, as defined in 5 18.82 of this subchapter,
                which is to be furnished by the licensee upon request
The Honorable Robert E. Talton - Page 3              (GA-0493)




Id. 5 18,92(a)(3). The rules define the term “[vlehicle owner” to include a member of the registered
vehicle owner’s immediate family. See id. 5 18.82(13) (Tex. Dep’t of Transp., Definitions). The
term “[ilmmediate family” is defined to mean “[a]n individual’s parents, spouse, children, brothers,
and sisters if they reside in and are supported by the same household.” Id. 5 18.82(6). Section
 18.82(3) defines the term “Affidavit of Right of Possession and Control,” to which section
 18,92(a)(3)(G) refers, as “[a] form prescribed by the [Dlepartment and provided by the licensee for
use by an individual certifying right of possession ifthe licensee is unable to verz$ the individual s
status as an immediatefamily member.” Id. 3 18.82(3) (emphasis added).

        The Department-approved   Affidavit form requires anotary public to attest that an individual
whose identity has been verified by the presentation of a driver’s license has personally appeared
before him and “after being duly sworn” stated:

               That I am the owner (or the authorized representative of           the
               owner) of the Year/Make of vehicle automobile, bearing m        motor
               vehicle registration   License Plate Number          and/or Vehicle
               IdentificationNumber,  that as such1 am entitled to obtain possession
               of said motor vehicle.

Tex. Dep’t ofTramp., Affidavit ofRight ofPossession or Control, available utwww.dot.state.tx.us/
services/motor-carrier/vehicle-storage.htm (last visited Dec. 12,2006).

         You aver that the Department has interpreted sections 18.82(3) and 18.92(a)(3)(G) of its rules
“to mean that a vehicle storage facility is required to release a vehicle to any person who presents
a notarized Affidavit,” whether or not the person is a member of the vehicle owner’s immediate
family. Request Letter, S~JXZ note 1, at 2. You believe the rules may be interpreted differently:

                         Adifferent interpretationof §18.82(3) and [§]18,92[(a)](3)(G)
                is that the person certifying right of possession of the vehicle must be
                an immediate family member of the vehicle owner. The proper use
                of the Affidavit would be limited to those instances when the vehicle
                storage facility has some question about or trouble verifying whether
                or not the person seeking possession of the vehicle is in fact a family
                member of the vehicle owner. Under this interpretation, [if] the
                vehicle storage facility, for whatever reason, “_.. is unable to verify
                the individual’s status as an immediate family member[,]” the
                Affidavit would then be used as additional proof and assurance that
                the person wanting the vehicle is an immediate family member of the
                vehicle owner.

Id.
         In a brief submitted to this office, the Department defends its interpretation of section
 18.93(a)(3), under which “anyone can use the aftidavit under Paragraph (G), ifhe or she can sign and
The Honorable Robert E. Talton        - Page 4           (GA-0493)




attest that he or she has a right to possession of the vehicle.‘” The Department cites a 2000 decision
of the Austin court of appeals, Quimby v. Tex& Department of Transportation, that “recognized”
that a tow truck operator who is not a member of a stored vehicle owner’s immediate family may use
an Affidavit to establish a right to possess the vehicle. TxDOT Brief, supra note 2, at 2; see
Quimby v. Tex. Dep ‘t ofTransp., 10 S.W.3d 778,779 (Tex. App.-Austin           2000, pet. denied). The
Department urges us to follow Quimby’s lead in upholding a state agency’s interpretation of
the agency’s rules unless they are “plainly erroneous, ” “inconsistent with the rule,” or “arbitrary
or capricious.” TxDOT Brief, supra note 2, at 3; see Quimby, 10 S.W.3d at 781-82. In the
Department’s view, “[i]t is clear that under [section] 18.92(a)(3) the owner or any authorized
representative ofthe owner, regardless ofthe representative’s relationship to the owner, may use the
affidavit to satisfy the requirements of that provision.” TxDOT Brief, supra note 2, at 4.

         In Quimby a licensed tow truck operator argued that the Department had erroneously
interpreted section 18.92(a)(3)3 to require a vehicle storage facility to obtain a completed and
notarized Affidavit from him before the facility would release the vehicle to him. See Quimby, 10
S.W.3d at 779. The court explained that generally, eat least with respect to the nonconsent tow of a
motor vehicle that has been “involved in a collision and rendered inoperable,” “a tow truck operator,
and not the owner of the car, will go to the [vehicle storage facility], obtain the vehicle, and tow it
to a repair shop.” Id. In the tow truck operator’s view, requiring him to appear before a notary and
sign an affidavit as the vehicle owner’s authorized representative was unduly burdensome and
resulted in the loss of business to tow trucks operated by the vehicle storage facilities. Id. at 780.

         Ultimately holding that “nothing in the rule          would preclude” the Department’s
interpretation, the court set out the appropriate standards by which to evaluate the Department’s
construction:

                         We will examine [the Department’s] interpretation of its rule
                to see if that interpretation is reasonable. Administrative rules are
                ordinarily construed in the same manner as statutes. An agency’s
                interpretation of its own rules is entitled to deference by the courts.
                Our review is limited to determining whether the administrative
                interpretation   “is plainly erroneous or inconsistent        with the
                regulation.” We will defer to an agency’s interpretation as long as it
                is reasonable and does not contradict the plain meaning of the statute.



         ‘Letter from Leonard Reese, Associate General Counsel, Texas Department of Transportation, to Nancy S.
Fuller, Chair, Opinion Committee, Office of the Attorney General, at 2 (June 9, 2006) (on file with the Opinion
Committee) [herein&r    TxDOT brief].

         ‘Quimby refers m the relevant section as 18.92(a)(2). See Quimby, 10 S.W.3d at 779;~~ also 22 Tex. Reg.
2593,2597-98      (1997), adopted22 Tex. Reg. 5680, 5680 (1997) (codified at 43 TEX. ADMIN. CODE 5 18.92(a)(2))
(adopting the rule considered in Quimby). In November 2003 the Texas Department of Transportation proposed that,
amongotherthings,     subsection(2) ofsection 18.92 be renumbered assubsection(3).  See28 TexReg. 10150,1016768
(proposedNov.     14,2003). The Commission adopted this proposal in2004. See29 Tex. Reg. 2715,2716 (March 12,
2004). To avoid confusion, this opinion refers to the relevant section as section 1%92(a)(3).
The Honorable Robert E. Talton - Page 5              (GA-0493)




               If an agency has “failed to follow the clear, unambiguous language of
               its own regulation, we must reverse its action as arbitrary and
               capricious.”

Id. at 781-82 (citations omitted) (quoting Pub. Util. Comm’n v. GulfStates Utils. Co., 809 S.W.2d
201,205,207    (Tex. 1991)).

         The rules do not facially restrict the Affidavit’s use to immediate family members only.
Section 18,82(a)(3) defines the Affidavit as a form a licensed vehicle storage facility must provide
to an individual who claims the right to possess the vehicle “if the licensee is unable to verify”
that the individual is a member of the vehicle owner’s immediate family. 43 TEX. ADMN. CODE
 § 18.82(3) (2006) (Tex. Dep’t of Transp., Definitions). The definition does not expressly restrict the
use of the Affidavit to immediate family members. The Commission easily could have written the
definition to do so by replacing the phrase “if the licensee is unable” with “in order,” but it did not
do so. Under a reasonable reading of the definition, both an immediate family member who is
unable to prove such status and any other authorized representative (who by definition could never
prove family member status) may use an Affidavit to obtain the vehicle. See id.

        Likewise, section 18.92 does not on its face limit the Affidavit’s use to members of the
vehicle owner’s immediate family. See generally id. 5 18.92 (Tex. Dep’t of Transp., Technical
Requirements). Rather, section 18.92 enables a vehicle owner’s authorized representative to obtain
possession of the vehicle upon presentation of the Affidavit. See id. 5 18.92(a)(3). In addition, a
member of the vehicle owner’s immediate family is granted the same rights to claim the vehicle as
the owner by presenting valid identification and one of the seven types of proof listed in section
 1%92(a)(3). See id. 5 ~S.~~(~)(~);C~TEX.OCC.CODEA~.         @2303.002(5)(B), .153(a)(6) (defining
“owner” and expressly recognizing that a member of a vehicle owner’s immediate family may claim
a stored vehicle). An immediate family member is likely to have access to at least one other
acceptable type of proof, but subsection (a)(3)(G) in particular provides persons other than
immediate family members-which        Quimby suggests is standard practice-with  a method by which
to claim the vehicle. See Quimby, 10 S.W.3d at 779.

         Consequently, we conclude that the Department has reasonably construed the Commission’s
rule, in a manner not inconsistent with the rule’s plain language, to allow individuals outside the
vehicle owner’s immediate family to use the Affidavit. A licensed vehicle storage facility may
release a stored vehicle to an individual who is not a member of the vehicle owner’s immediate
family but who presents a properly completed Aftidavit~and who otherwise complies with section
18,92(a)(3)‘s requirements.
The Honorable Robert E. Talton - Page 6            (GA-0493)




                                      SUMMARY

                        The Texas Department of Transportation reasonably has
               construed title 43, sections 18.82(3) and 18.92(a)(3)(G) of the Texas
               Administrative Code to permit individuals who are not members of
               a vehicle owner’s immediate family to claim the stored vehicle using
               an Affidavit of Right of Possession and Control. A licensed vehicle
               storage facility may release a stored vehicle to an individual who is
               not a member of the vehicle owner’s immediate family but who
               presents a properly completed Affidavit and who otherwise complies
               with section 18.92(a)(3).

                                             Very truly yours,




                                          A- GREG             OTT
                                             Attorney General of Texas



KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
