Untitled Texas Attorney General Opinion ( 2005 )

GREG ABBOTT
Aprii 13, 2005
The Honorable Kent Grusendorf Opinion No. GA-0316
Chair, House Committee on Public Education
Texas House of Representatives Re: Post-hearing procedure in cases involving
Post Office BoX 2910 nonconsent tows (RQ-0278-GA)
Austin, 'l``exas 78768-2910
The Honorable Mike Krusee
Chair, House Committee on Transportation
Texas House of Representatives
Post Oftice BoX 2910
Austin, Texas 78768-2910
Dear Representatives Grusendorf and Krusee:
Together you inquire about post-hearing procedure in nonconsent tow hearings conducted
under chapter 685 of the Texas Transportation Code.1 You inform us that in three separate
nonconsent tow hearings in the City of Arlington Municipal Court, a municipal court of record, the
judge serving as a magistrate determined that there was no probable cause for challenged nonconsent
tows. See Request Letter, supra note l, at 2. After the hearings, attorneys for the tow companies
and apartment complexes, as the parties who initiated the nonconsent tows, submitted various
documents (motion for rehearing, motion for new trial, and notice of appeal) seeking to reverse the
decisions of the court. See ial. At the same time, the parties whose vehicles had been towed sought
reimbursement for their costs or return of their vehicles. See id. You'state that it “is unclear under
the law how the court can proceed in these matters,” ial., and ask
[i]s the decision iinal, after a hearing in a municipal court under
[section] 685.003 of the TeXas Transportation Code, if the hearing
results in a finding of no probable cause for the nonconsent tow?' If
not, what is the post-hearing procedure?
Icl. at l.
lLetter from Honorable Kent Grusendorf and Honorable Mike Krusee, Texas House of Representatives, to
Honorable Greg Abbott, Texas Attorney General (Sept. 24, 2004) (on file with Opinion Committee, also available at
http://Www.oag.State.tx.us) [hereinafter Request Letter].
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The Honorable Mike Krusee
I. Nonconsent Tow Hearings
Pursuant to chapter 685, a person whose vehicle has been towed without consent is entitled
to a hearing on whether probable cause existed for the removal of the vehicle. See TEX. TRANSP.
CODE ANN. § 685.003 (Vernon 1999). The primary issue at a hearing conducted under chapter
685 is whether probable cause existed for the removal and placement of the vehicle. See ia’.
§ 685.009(0)(1) (Vemon Supp. 2004-05). lf the court conducting the hearing finds there was
probable cause for the authorization of the removal and storage of the vehicle, the “person who
requested the hearing shall pay the costs of the removal and storage.” Icl. § 685.002(3) (Vemon
1999). On the other hand, if the court finds no probable cause for the removal and storage of the
vehicle, the “person or law enforcement agency that authorized the removal shall” pay the costs of
removal and storage or reimburse the owner or operator for removal and storage costs already paid
by the owner or operator. Ial. § 685.002(b). Jurisdiction to conduct these probable cause tow
hearings is given to the justice of the peace or magistrate in the jurisdiction from which the vehicle
was removed2 See id. § 685.004(a) (Vemon Supp. 2004-05). Your inquiry pertains specifically to
tow hearings that are conducted before a magistrate3 of a municipal court. See Request Letter, supra
note l, at l.
II. Municipal Courts
Municipal courts are statutory courts created pursuant to the legislature’s constitutional
authority to create “such other courts” as necessary. See TEX. CONST. art. V, § 1 (vesting judicial
power in “one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District
Courts, in County Courts, in Commissioners Courts, in Courts of]ustices of the Peace, and in such
other courts as may be provided by law”); see also Tex. Att’y Gen. Op. No. Dl\/l-427 (1996) at 2.
There are two kinds of municipal courts in Texas: municipal courts and municipal courts of record.4
See TEX. GOV’T CODE ANN. §§ 29.002 (Vernon 2004) (creating a municipal court in each
municipality), 30.00003(a) (permitting the governing body of certain municipalities to create a
2In municipalities with a population of 1.9 million or more, the hearing is to be conducted by the judge of “a
municipal court in whose jurisdiction is the location from which the vehicle was removed.” TEX. TRANSP. CODE ANN.
§ 685.004(b) (Vernon Supp. 2004-05).
3Among other officers, justices of the peace, mayors and judges of municipal courts are magistrates See TEX.
CODE CRIM. PROC. ANN. art. 2.09 (Vernon Supp. 2004-05).
4As one court explained:
Prior to September l, 1999, each municipality authorized to have a municipal court
of record had its independent subchapter of`` chapter 30 of the [G] overnment [C]ode,
which authorized the governing body of the municipality to create a municipal court
of record and established certain provisions for the court. With the legislation
effective September l, 1999, subchapter A authorizes all municipalities listed in
chapter 30 to create municipal courts of record and sets out provisions governing
all the municipal courts ofrecord. Each municipality then has a separate subchapter
containing provisions specific to that municipality
Martin v. State, 13 S.W.3d 133, 136 n.l (Tex. App.~Dallas 2000, no pet.) (citations omitted).
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The Honorable Mike Krusee
municipal court of record); see also ial. §§ 30.00851-.00856 (pertaining to a municipal court of
record for the City of Arlington); cf. id. § 30.00003(€) (stating a municipal court of record of a
municipality may not exist concurrently with a municipal court of the same municipality),
Because the constitution does not specifically provide for them, or for their jurisdiction,
municipal courts and municipal courts of record derive their jurisdiction from statute. See id.
§§ 29.003 (municipal courts), 30.00005 (municipal courts of record); TEX. CODE CRIM. PROC. ANN.
art. 4.14 (Vernon Supp. 2004-05) (municipal courts and municipal courts of record). As statutory
courts, municipal courts and municipal courts of record have only limited jurisdiction that cannot
exceed the jurisdiction expressly conferred by the legislature See Tex. Att’y Gen. Op. No. DM-427
(1996) at 2 (municipal courts “have no jurisdiction other than that which the legislature prescribes”);
see also Tex. Att’y Gen. Op. No. JC-0216 (2000) at 2 (stating a municipal court is one of limited
jurisdiction). Jurisdiction for municipal courts and municipal courts of record is found in the
Government Code and the Code of Criminal Procedure. Both statutes grant “exclusive original
jurisdiction” to municipal courts, including municipal courts of record, over all criminal cases arising
under city ordinances that are punishable by fine.5 TEX. GOV’T CODE ANN. § 29.003(a) (Vemon
2004); TEX. CODE CRIM. PROC. ANN. art. 4.14(a) (Vernon Supp. 2004-05). ln addition to this
criminal jurisdiction, municipal courts and municipal courts of record have “concurrent jurisdiction
with the justice court of a precinct in which the municipality is located” over certain6 state law
violations TEx. Gov’r CODE ANN. § 29.003(b) (Vernon 2004); TEx. CODE CRn\/i. PROC. ANN. art.
4.14(b) (Vernon Supp. 2004-05). Municipal courts of record, in addition to the jurisdiction of
municipal courts, see TEX. GOV’T CODE ANN. § 30.00005(a) (Vernon 2004), have other jurisdiction
as provided by the Govemment Code. Seez``d. § 30.00005(b)-(d); cf. Prince v. Garrison, 248 S.W.Zd
241, 243 (Tex. Civ. App.-Eastland 1952, no writ) (the legislature fixes the jurisdiction of
corporation [municipal] courts by statute).
III. Appeal from Municipal Court
The Government Code and the Code of Criminal Procedure provide a limited right to appeal
from municipal courts and municipal courts of record. The Code of Criminal Procedure gives a
defendant in any criminal action the right to appeal. See TEX. CODE CRIM. PROC. ANN. art. 44.02
(Vernon 1979 & Supp. 2004-05). Appeal from a municipal court, other than a municipal court of
record, is a a'e novo trial in the county court. See ial. arts. 44.17, 45 .042(b) (Vernon Supp. 2004-05).
5Permissible fines are not to exceed:
(A) SZ,OOO in all cases arising under municipal ordinances or resolutions, rules, or orders of
a joint board that govern fire safety, zoning, or public health and sanitation, including
dumping of refuse; or
(B) $5 00 in all other cases arising under a municipal ordinance or a resolution, rule, or order
of a joint board.
TEX. Gov’r CODE ANN. § 29.003(3)(1) (vemon 2004).
6State law violations must arise Within the territorial limits of the municipality and must be punishable by fine
only. See id. § 29.003(b)(1)-(2).
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The Government Code provides a defendant a right of appeal “from a judgment or conviction in a
municipal court of record.” TEX. GOV’T CODE ANN. § 30.00014(a) (Vernon 2004). Appeal from
a municipal court of record is to the county criminal courts or county criminal courts of appeal, see
ial., and is not conducted as a de novo trial but as an appeal based on error reflected in the record.
See TEx. CODE CRIM. PROC. ANN. arts. 44.17, 45 .042(b) (Vernon Supp. 2004-05), TEX. Gov’TCoDE
ANN. § 30.00014(b) (Vernon 2004).
A. Necessity of Criminal Case
lt has been said that matters appealed from municipal courts must involve a criminal
case. See City of Lubbock v. Green, 312 S.W.2d 279, 282 (Tex. Civ. App.-Amarillo 195 8, no writ)
(stating an appeal from municipal court “would lie only if the proceedings constituted a criminal
case.”); see also 23 DAvID BRooKs, TExAs PRACTICE: MUNICIPAL LAw AND PRACTICE § 15.19
(1999). The holding in the Green case, that there was no appeal from a municipal court where the
matter was not a criminal case, was premised on the fact that municipal courts had no civil
jurisdiction See Green, 312 S.W.2d at 282 (“Since [the statute] limits the jurisdiction of corporation
courts to criminal cases . . . .”). The statutes now provide municipal courts of record with limited
civil jurisdiction See TEX. GOV’T CODE ANN. § 30.00005(d) (Vernon 2004) (providing that
governing body of municipality may provide that municipal court of record may have specified civil
jurisdiction). The Code of Criminal Procedure still contemplates that appeals from municipal courts
will involve solely criminal matters. See TEX. CODE CRIM. PROC. ANN. art. 44.02 (Vernon 1979 &
Supp. 2004-05). Likewise, the Government Code does not appear to specifically provide for an
appeal of a purely civil matter within a municipal court’s jurisdiction See TEX. GOV’T CODE ANN.
§ 30.00014(a) (Vemon 2004). However, we do not address whether there is a general right of appeal
of civil matters within a municipal court’s jurisdiction Because of the unique nature of a chapter
685 nonconsent tow hearing, we do not think the Code of Criminal Procedure and Government Code
provisions supply the answer to your question.
B. Nonconsent Tow Hearing Is N either a Criminal Nor Civil Matter
Chapter 685 tow hearings are clearly not criminal matters. Nonconsent tow hearings
contemplated by chapter 685 are not designed to secure a conviction and punishment for a crime.
See Timmons v. Pecorz``no, 977 S.W.2d 603, 604 (Tex. Crim. App. 1998). The hearings are not
initiated by complaint, but rather by written request from the person whose vehicle has been towed.
See TEX. TRANSP. CODE ANN. § 685.007(a) (Vernon 1999). The party against whom the hearing is
sought is not a criminal defendant but “the person or law enforcement agency that authorized the
removal of the vehicle.” Ial. § 685 .009(b). Moreover, a chapter 685 hearing involves no crime or
criminal punishment but only an award of specified costs based on the findings of fact and
conclusion of`` law made by the court. See ia’. §§ 685.002(b), .009(d). A chapter 685 hearing does
not result in a conviction from which an appeal will lie. See Hardin v. State, 248 S.W.2d 487, 487
(Tex. Crim. App. 1952) (“The accused has not . . . been found guilty of anything, and no punishment
has been assessed; therefore, this is not a criminal case . . . .”).
Nor do the provisions for a chapter 685 nonconsent tow hearing suggest a civil adjudication
in the traditional sense. A chapter 685 hearing commences with a request, see TEX. TRANSP. CODE
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The Honorable Mike Krusee
ANN. § 685 .007(a) (Vernon 1999), instead of a petition or complaint as is expected in a civil case.
The parties involved in the hearing are not a plaintiff and defendant, but the person who authorized
the tow and the owner or operator of the vehicle that was towed. See id. §§ 685.002(a), .003,
.009(b). The chapter authorizes a magistrate to make findings of fact and a conclusion of law, see
id. § 685.009(d), but not to issue a final judgment lnstead, it merely states who “shall pay” certain
costs See ial. § 685.002. Appeals do not lie from findings of fact and conclusions of law but from
final judgments SeeN. E. Ina'ep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966).
C. Similar Statutory Hearing Procedures
A chapter 685 nonconsent tow hearing is a kind of statutory proceeding that is
uncommon Texas statutes provide a few other examples of isolated grants of authority to municipal
courts to conduct hearings for a particular purpose Chapter 822 of the Texas Health and Safety
Code creates a hearing process to determine whether a dog is dangerous See TEX. HEALTH &
SAFETY CODE ANN. § 822.0423 (Vernon 2003). The hearing is authorized to occur in a justice court,
county court, or municipal court. See ial. § 822.042(0). In such a hearing, the court is directed to
determine whether the dog is a dangerous dog as defined by the statute or whether the owner of the
dog has complied with certain requirements under the chapter. See ia'. § 822.0423(a); see also
Pecorz``no, 977 S.W.2d at 604 (a hearing under Health and Safety Code chapter 822 is not criminal
because the dog owner is not charged with or convicted of a criminal offense). The statute expressly
provides for an appeal of the court’s detennination. See ial. § 822.0423(d) (“An owner or person
filing the action may appeal the decision of the municipal court, justice court, or county court in the
manner provided for the appeal of cases from the municipal, justice, or county court.”). Similarly,
hearings conducted to determine the disposition of property alleged to have been stolen are
authorized to be conducted before, among others, a “municipal judge having jurisdiction as a
magistrate in the municipality.” TEX. CODE CRIM. PROC. ANN. art. § 47.01a(a) (Vernon Supp. 2004-
05). The hearing is conducted to determine the superior right to possession of the property. See ia’.
The statute expressly provides for an appeal from the hearing. See id. § 47.12(b) (“Appeals from a
hearing in a municipal court or justice court . . . shall be heard by a county court or statutory county
court.”). The statute further prescribes the applicable rules of procedure that govern the appeal. See
ial. Both of these hearing procedures are similar to a chapter 685 nonconsent tow hearing in that they
contemplate a hearing before a magistrate However, of these statutory hearings, chapter 685 is the
only hearing in which the statute does not provide for an appeal.
D. Legislature Has Not Provided for Appeal
Municipal court jurisdiction over a chapter 685 nonconsent tow hearing comes not
from the general statutes governing municipal courts and municipal courts of record but from the
Transportation Code. The specific grant of jurisdiction to conduct a nonconsent tow hearing is
limited. See TEX. TRANSP. CODE ANN. §§ 685.004(a) (Vernon Supp. 2004-05) (the hearing is
limited to a justice of the peace or magistrate in specified territory), 685.009(c) (the hearing is
limited to deciding issues specified in the statute). Chapter 685 does not contain a provision
authorizing an appeal from the magistrate’s determination We think the few examples of similar
statutory hearings, see discussion supra, clearly indicate that when the legislature creates a statutory
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hearing and wishes to grant a right of appeal, it knows how to do so.7 See Tex. Att’y Gen. Op. No.
GA-0271 (2004) at 2 (stating that when “it wishes to require immunizations for specific categories
of`` persons, the legislature knows how to do so”), Tex. Att’y Gen. Op. No. GA-0144 (2004) at 5
(stating that when “legislature intends to confer on a licensing board [certain] authority . . . , it knows
how to do so”); see also T horne v. Moore, 105 S.W. 985, 987 (1907) (“The Constitution leaves the
regulation of appeals very largely to the Legislature.”), Equitable Life Assur. Soc ’y v. Mura’ock, 219
S.W.2d 159, 164 (Tex. Civ. App.-El Paso 1949, writ ref’d n.r.e.) (stating the right of appeal “is a
privilege only and does not exist as a matter of right”). The Texas Constitution provides that
appellate jurisdiction is subject to regulations as may be prescribed by law. See TEX. CONST. art. V,
§ 5 . Thus, appeals are within the control of the legislature and are dependent on statute. See Thorne,
105 S.W. at 987; Mura’ock, 219 S.W.2d at 164. Because the legislature did not expressly provide
for an appeal of a magistrate’s determination in a statutory nonconsent tow hearing, we conclude that
the magistrate’s determination is final and that no appeal exists
E. No Inherent Right to Appeal
We received briefing that argues where a vested property right is involved there is an
inherent right of appeal that overrides any legislative restrictions on appeals8 The cases cited in
support of this proposition are distinguishable on the basis that they involve challenges to adverse
rulings of state administrative agencies See Pierson Behr Brief, supra note 8, at 2 (citing City of
Amarz``llo v. Hancock, 239 S.W.2d 788, 790 (Tex. 1951) (Civil Service Commission); Tex. Optometry
Ba’. v. Lee Vision Ctr., Inc., 515 S.W.2d 380, 382 (Tex. Civ. App.-Eastland 1974,’ writ ref’ d n.r.e.)
(Texas Optometry Board); Mart_ine v. Ba’. of Regents, State Seru``or Colls. of T ex., 578 S.W.2d 465,
472 (Tex. Civ. App.-1979, no writ) (Board of Regents, State Senior Colleges of Texas)). lt is well
established in administrative law jurisprudence that “courts should recognize an inherent right of
appeal from an administrative body created by an act silent on the question of appeal only where the
administrative action complained of violates a constitutional provision.” Hancock, 239 S.W.2d at
790; see also Brazosport Savs. & Loan Ass ’n v. Am. Savs. & Loan Ass ’n, 342 S.W.2d 747, 750-51
(Tex. 1961), Ba’. of Ins. Comm ’rs v. Tz'tle Ins. Ass ’n of T ex., 272 S.W.2d 95, 97-98 (Tex. 1954). We
have found no judicial authority for the application of this rule outside the administrative law
context.9 Accordingly, the cited cases are inapplicable to the action being challenged here ~ this is
an action of a court and not of an administrative agency.
7See also TEX. TRANSP. CODE ANN. §§ 471.001-.008 (Vernon 1999 & Supp. 2004-05) (chapter 471,
Transportation Code, creating the right to a hearing regarding the blocking of a railroad crossing but providing no
mechanism for appeal).
8See Brief from Grey Pierson, Pierson Behr Attorneys, to Honorable Greg Abbott, Texas Attorney General
(Nov. 10, 2004) (on file with Opinion Cornmittee) [hereinafter Pierson Behr Brief].
9Of course, We recognize that where a party has been deprived of property Without due process, the party may
have a separate cause of action under the Due Process Clause of either the state or federal constitution See Boddie v.
Conn., 401 U.S. 371, 378-79 (1971). We received no briefing on this issue and the question does not inquire about such
a cause of action, so we do not consider it in this opinion We do point out, however, that a party given an opportunity
to participate in a chapter 685 nonconsent tow hearing is likely afforded sufficient due process
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The Honorable Mike Krusee
A nonconsent tow hearing conducted before a magistrate of a municipal court or municipal
court of record pursuant to chapter 685, Texas Transportation Code, results in a final probable cause
determination from which there is no appeal. Because we have concluded the magistrate’s
determination is final, we do not address the second part of your inquiry about post-hearing
procedure
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The Honorable Mike Krusee
SUMMARY
Where a nonconsent tow hearing authorized by chapter 685 of
the Texas Transportation Code 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.
Very truly yours,
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee