                                    April   26, 1990


      Mr. Larry E. Kosta                    Opinion    No.   JM-1168
      Acting Executive  Director
      Texas Department  of                  Re:   Extent    of  coverage    of
          Licensing and Regulation          article    6687-9b,    V.T.C.S.,
      P. 0. Box 12157                       which   regulates    the   opera-
      Austin, Texas    78711                tion of tow trucks      (RQ-1883)

      Dear   Mr.    Kosta:

            You ask about the scope of a statute that requires        tow
      trucks to be registered.      V.T.C.S. art. 6687-933.     Specifi-
      cally, you ask whether certain types of vehicles      are   exempt
      from the registration   requirement.

            Article   6687-9b defines "tow truck" as "a motor vehicle
      or mechanical     device   adapted or    used    to tow,   winch,  or
rc-   otherwise   move disabled motor     vehicles."     Id.   5 l(4).   As
      amended by    the 71st    Legislature,   section    2(a) contains   a
      broad prohibition      on  the   operation    of   unregistered   tow
      trucks:

                       Except as provided by   Section 51 of   this
                   Act, a person may not operate a tow truck      in
                   this state unless the tow truck is registered
                   with the [Department    of Licensing and   Regu-
                   lation] as provided    by this Act.    (Footnote
                   added.)

      Acts 1989, 71st Leg., ch. 1039, 5 2.52, at 4206.       Before the
      1989 amendment,  section    2(a) provided that   a person    could
      not operate a tow truck     in Texas "for compensation"     unless
      the truck   was registered    as provided  by article     6687-933.
      The 1989 amendment   deleted the words "for compensation"      from



            1:  Section 5 of     the act actually   sets out no    exemp-
      tions from    registration.     Rather,   it provides    that    any
      municipal  registration    shall be in addition to    registration
      under article 6687-9b.




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Mr.     Larry   E. Kosta   - Page   2   (JM-1168)




section 2(a).    Consequently,   you ask whether registration     is
now required   for all tow    tNCkS   operated in Texas,    without
exception,   or whether certain     categories of tow trucks -may
be exempted by rule from the registration      requirement.

      The legislative     history of     the 1989    amendment      shows
that the legislature    did intend to broaden significantly           the
scope of the registration       requirement.     An analysis     in   the
bill file states that the       amendment   "brings all tow       trucks
under the law by removing       the phrase 'for compensation'          as
the criteria    for a tow      truck to    be registered      with    the
department."    Bill Analysis,     C.S.H.B. 863, 71st beg. (1989).
We   conclude,   however,      that   deleting      the   words      "for
compensation"   from section     2(a) of article      6687-9b was      by
itself insufficient    to   make "all tow      tNCkS"    subject to      a
registration   requirement.

      Section 2(a)    does    not itself    impose    a registration
requirement.    Rather,    it   states   that    a   person     may   not
operate a tow     truck    in Texas unless       the   tow     truck   is
registered   "as provided by this Act.”       The only part of        the
act that may be read to provide for registration            is   section
2(b), which states:

                The commissioner   shall issue a certificate
            of registration   to   a tow   truck owner    whose
            vehicle meets    the registration     requirements
            prescribed   by  rule of    the commissioner     and
            who pays   the   registration    fee.     (Emphasis
            added.)

A Vow      truckowner" iS "a person in aaaed In the business          of
using     a tow truck to tow,    winch, or otherwise    move a motor
vehicle."    V.T.C.S.   art.    6687-9b, S l(5) (emphasis       added).
In other words,      the authority     of the   commission   to   issue
registration    certificates    extends only to persons engaged       in
the business    of using a tow     truck.    It may not be clear      in
every case whether      a particular     person is    engaged in     the
business   of using tow trucks for the purposes        set out in the
act, but    undoubtedly     the   class of    tow  trucks    owned    by
persons engaged      in the   business   of   using tow    trucks    for
those purposes     is smaller than the class of all tow trucks.

      Perhaps more significant    in determining    the scope   of
the registration  requirement   for tow trucks is section 8 of
article 6687-933, which sets out    the penalty for failure     to,
register a tow'truck     in accordance    with article   6687-913.
The 1989 bill that deleted the words nfor compensation"       from




                                        p. 6167
Mr.   Larry   E. Kosta    - Page    3      (JM-1168)




section 2(a)    did      not   delete      those       words     from      section        8,
which provides:

                                    commits       an     offense     if        the

          ~d'~o~~e~~~~r~i~~~at~~~~
          registration   issued under             this    Act.

              (b) An offense            under this         section        is     a
          Class C misdemeanor.             (Emphasis       added.)

In other  words, the    act does     not make   it an offense    to
operate an unregistered   tow truck.      It makes it an   offense
to operate an unregistered   tow truck for compensation.

     In light of the language in section 2(b) and section   8
of article 6687-913, we conclude that the 1989 amendment  did
not broaden the   scope of the   registration requirement for
tow trucks under article 6687-913.

                               SUMMARY

                A 1989  amendment  to   article   6687-9b,
          which deals with registration    of tow  trucks,
          did not broaden the scope of the registration
          requirement  under that article.




                                              JIM      MATTOX
                                              Attorney General                 of Texas

MARY KELLER
First   Assistant   Attorney        General

JUDGE ZOLLIE STEAKLEY
Special Assistant  Attorney             General

RENEA HICKS
Special Assistant        Attorney       General

RICK GILPIN
Chairman,  Opinion       Committee

Prepared by Sarah Woelk
Assistant Attorney General




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