NON-CONSENT TOW CASE LAW
STATUTE GOVERNING TOWING OF VEHICLES WITHOUT OWNER'S CONSENT
Pursuant to Chapter 685 of the Transportation Code, appellant filed a request for a tow hearing in
justice court in Harris County. See Act of Sept. 1, 1995, 74th Leg., ch. 165 § 1 (amended 2007)
(current version at Tex. Occ. Code Ann. § 2308.452 (Vernon Supp. 2008).[1] (“The owner or operator
of a vehicle that has been removed and placed in a vehicle storage facility without the consent of the
owner or operator of the vehicle is entitled to a hearing on whether probable cause existed for the
removal and placement."). At such a hearing, the burden of proof is on the person who requested the
hearing. Tex. Occ. Code Ann. § 2308.458(b-1). The issues to be determined in the hearing are
whether probable cause existed for the removal and placement of the vehicle, and whether a towing
charge imposed or collected in connection with removal or placement of the vehicle was greater than
the amount authorized by the statutue. Tex. Occ. Code Ann. § 2308.458(c).
Appellant Badaiki Fidelis appeals from the determination by the trial court that appellee, Overhaulin' Tow
Company, had probable cause to tow and store appellant's vehicle. In nine issues, appellant contends (1) his
constitutional right to confront witnesses was violated because not all of the defendants were represented at
trial, (2) there was no probable cause to tow his vehicle because his apartment complex did not display the
appropriate “handicapped parking" sign or “unauthorized vehicle sign," (3) the towing company could not tow
his vehicle because it did not carry liability insurance, and (4) the storage facility could not charge an impound
fee or notification fee. We affirm.
Badaiki v. Tia Smith , Overhaulin Tow Company (Tex.App.- Houston [14th Dist.] Sep. 24, 2009)(per curiam)
( nonconsent tow of vehicle, tow hearing in Justice court , appeal from JP court )
AFFIRMED: Per Curiam
Before Justices Brock Yates, Frost and Brown
14-08-00224-CV Fidelis Badaiki v. Tia Smith, Rita Casey, Overhaulin Tow Company
and West Houston Auto Storage
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge: Linda Storey
Factual and Procedural Background
On October 15, 2007, Overhaulin' Towing Company towed appellant's vehicle from his apartment complex
parking lot because his vehicle was parked in a space designated for exclusive use of a vehicle transporting a
disabled person and did not display special license plates or a disabled parking placard.
WHICH COURT?
The Attorney General issued an opinion in which he determined that when a nonconsent tow hearing is
conducted before a magistrate of a municipal court or municipal court of record, the magistrate's determination
is final, and there is no appeal. Tex. Att'y Gen. Op. No. GA-0316 (2005). Appeals from municipal courts are
prescribed by the Legislature. Because the Legislature provided no right to appeal from a municipal court's
determination of probable cause in a nonconsent tow hearing, the municipal judge's determination is final. In
this case, however, appellant requested a hearing in justice court. Jurisdiction over appeals from justice court
is controlled by the Rules of Civil Procedure, which permit appeal to the county court. See Tex. R. Civ. P. 574b.
“Nonconsent tow hearings are not criminal matters. See Tex. Att'y Gen. Op. No. GA-0316 (2005)