Part 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

Chapter 85. VEHICLE STORAGE FACILITIES

16 TAC §§85.1, 85.10, 85.20, 85.200 - 85.208, 85.400, 85.450 - 85.453, 85.650, 85.700 - 85.725, 85.800, 85.900, 85.1000 - 85.1003

The Texas Department of Licensing and Regulation ("Department") proposes new 16 Texas Administrative Code Chapter 85, §§85.1, 85.10, 85.20, 85.200 - 85.208, 85.400, 85.450 - 85.453, 85.650, 85.700 - 85.725, 85.800, 85.900, and 85.1000 - 85.1003, regarding the licensing and regulation of vehicle storage facilities and vehicle storage facility employees. These rules are necessary to implement House Bill 2094, 80th Legislature, Regular Session, 2007.

New §85.1 provides statutory authority for rule adoption.

New §85.10 defines terms used in the statute and the rules, including "abandoned nuisance vehicle," "act," "affidavit of right of possession and control," "commission," "day," "department," "executive director," "fence," "immediate family," "impoundment," "license holder or "licensee," "main," "person," "principal," "registered owner," "vehicle," "vehicle owner," "vehicle storage facility," and "vehicle transfer."

New §85.20 establishes exemptions to the rules.

New §85.200 provides that a vehicle storage license is required.

New §85.201 establishes the licensing and application requirements for vehicle storage facilities.

New §85.202 establishes criteria for the review of vehicle storage facility license applications.

New §85.203 establishes the annual renewal requirements for vehicle storage facility licenses.

New §85.204 establishes the application requirements for a vehicle storage facility employee license.

New §85.205 establishes the annual renewal requirements for a vehicle storage facility employee license.

New §85.206 provides notice to applicants of proposed denial of applications with an opportunity to cure.

New §85.207 provides additional method of notice to licensees using the last designated e-mail address.

New §85.208 provides that a license is valid for one year.

New §85.400 establishes the insurance requirements for obtaining and renewing a vehicle storage facility license.

New §85.450 establishes the general requirement of a department initiated inspection of a vehicle storage facility.

New §85.451 provides for bi-annual inspections of a vehicle storage facility during normal business hours.

New §85.452 establishes the criteria for a risk-based inspection of a vehicle storage facility.

New §85.453 provides the procedures for corrective actions following a department initiated inspection of a vehicle storage facility.

New §85.650 provides for a Towing and Storage Advisory Board. This section list criteria of board membership, terms of office, meetings times, and board responsibilities.

New §85.700 places the burden of proving exemption from the rules on the licensee.

New §85.701 prohibits licensees from engaging in false, misleading, or deceptive advertising.

New §85.702 requires licensees to notify the department of changes in name, address, facility capacity, or the drug testing policy.

New §85.703 describes the procedures that a vehicle storage facility must initially follow to send notice to vehicle owners and lien holders.

New §85.704 describes the procedures that a vehicle storage facility must follow to provide a second notice for unclaimed vehicles before the vehicles may be disposed.

New §85.705 requires a vehicle storage facility to notify local law enforcement of every nonconsent-towed vehicle from private property stored at the facility.

New §85.706 lists the documents and information that a vehicle storage facility must retain, including the retention period.

New §85.707 requires a vehicle storage facility to give the vehicle owner the department's website and e-mail address, mailing address, and telephone number, for purposes of directing complaints.

New §85.708 describes the rights of the vehicle owner to have access to stored vehicles.

New §85.709 prohibits un-permitted tow trucks from entering the grounds of a vehicle storage facility.

New §85.710 lists the types of documents required for release of a vehicle to the vehicle owner or representative.

New §85.711 lists the types of payment a vehicle storage facility must accept for release of a stored vehicle.

New §85.712 requires payment by lienholder and insurance company for release of vehicles regardless of when the charges accrued.

New §85.713 requires a vehicle storage facility to release a vehicle to the owner or representative regardless of whether law enforcement has paid charges resulting from a law enforcement hold, unless the charges result from a delinquent administrative penalty assessed against the vehicle owner.

New §85.714 requires a vehicle storage facility to provide to a vehicle owner or representative, on request, its liability insurance company contact information including the policy number.

New §84.715 establishes a requirement that a vehicle storage facility maintain a publicly listed telephone number and notify the department of any change to that number.

New §85.716 requires a vehicle storage facility to inspect a nonconsent towed vehicle, and, if necessary, correct erroneous information on the tow ticket.

New §85.717 describes the conditions under which a vehicle storage facility may remove parts from, dismantle, or demolish a stored vehicle.

New §85.718 prohibits the personal or business use of a stored vehicle by a vehicle storage facility without written owner consent.

New §85.719 requires reasonable efforts by a vehicle storage facility for the safe storage of vehicles and describes the circumstances under which impoundment fees may be charged.

New §85.720 prohibits a vehicle storage facility from repairing or altering a stored vehicle without written consent.

New §85.721 establishes procedures for transferring a stored vehicle from one vehicle storage facility to another vehicle storage facility.

New §85.722 prohibits a vehicle storage facility from charging fees except for those fees specifically authorized for owner notification, charged for daily storage, collected on behalf of government or law enforcement, and environmental hazard fees.

New §85.723 identifies statutory authority for the disposal of certain vehicles and requires the keeping of records after disposal.

New §85.724 describes the procedures for the public sale of abandoned nuisance vehicles.

New §85.725 provides a model drug testing policy for employees of a vehicle storage facility.

New §85.800 establishes the fees for initial applications, renewal applications, inspection fees, and late renewals.

New §85.900 provides for the imposition of administrative penalties and/or sanctions against a person that violates the statute or rules.

New §85.1000 establishes fencing and security requirements for a vehicle storage facility.

New §85.1001 provides that a vehicle storage facility must have an all-weather surface.

New §85.1002 provides vehicle storage facility minimum lighting requirements.

New §85.1003 provides for the location and content of signage at a vehicle storage facility.

William H. Kuntz, Jr., Executive Director of the Department, has determined that for each year of the first five-year period the new rules are in effect, there will be costs to the Department to enforce and administer these rules. The expected cost is approximately $1,000,000 per year. Fees, which are included in the rules, have been set to generate revenues sufficient to cover these costs. There is no anticipated fiscal implication for units of local government.

Mr. Kuntz has determined that for each year of the first five-year period the new rules are in effect, the public will benefit from clarity in what is required by law of a vehicle storage facility. The rules also provide consumer protection for individuals whose vehicles are the subject of a nonconsent tow. The public will also benefit from the enhanced integrity of vehicle storage facilities and their employees.

Mr. Kuntz also has determined that for each year of the first five-year period the new rules are in effect, there will be economic costs imposed on persons and businesses that are required to obtain permits and licenses under these new rules. These costs may include initial permit and licensing fees, annual renewal fees, insurance premiums, expenses for maintaining records and conducting employee drug testing.

Mr. Kuntz has also determined that, for each year of the first five-year period the proposed new rules are in effect, costs related to licensing fees, insurance, and drug testing may represent an adverse economic effect on small businesses that operate vehicle storage facilities. However, the licensing fees, insurance, and drug testing costs are imposed by statute; therefore, no regulatory alternative is available. Accordingly, no regulatory flexibility analysis is necessary.

Comments on the proposal may be submitted by mail to Caroline Jackson, Legal Assistant, General Counsel's Office, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711; by facsimile to (512) 475-3032; or by e-mail to erule.comments@license.state.tx.us. The deadline for comments is 30 days after publication in the Texas Register.

The new rules are proposed under Texas Occupations Code, Chapter 2303, which directs the Department's governing body, the Texas Commission of Licensing and Regulation ("Commission"), to adopt rules to establish the requirements for a person to be licensed to operate a vehicle storage facility, and to ensure that the facility maintains adequate standards for the care of stored vehicles; and Texas Occupations Code, Chapter 51, which authorizes the Commission to adopt rules as necessary to implement this chapter and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapter 51 and Chapter 2303. No other statutes, articles, or codes are affected by the proposed new rules.

§85.1.Authority.

These rules are adopted under the authority of the Texas Occupations Code, Chapter 51 and Chapter 2303.

§85.10.Definitions.

The following words and terms, when used in these rules, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Abandoned nuisance vehicle--A motor vehicle that is at least 10 years old and is of a condition only to be demolished, wrecked, or dismantled.

(2) Act--The Vehicle Storage Facility Act, Texas Occupations Code, Chapter 2303.

(3) Affidavit of Right of Possession or Control--A form prescribed by the department and provided by the licensee for use by an immediate family member certifying right of possession to a vehicle stored at a vehicle storage facility.

(4) Commission--The Texas Commission of Licensing and Regulation.

(5) Day--Twenty-four continuous hours.

(6) Department--The Texas Department of Licensing and Regulation.

(7) Executive director--The executive director of the department.

(8) Fence--An enclosure of wood, chain link, metal, concrete, or masonry, placed around an area used to store vehicles and designed to prevent intrusion and escape.

(9) Immediate family--A vehicle owner's parents, spouse, children, brothers, and sisters.

(10) Impoundment--The following actions when performed on a stored vehicle:

(A) using materials such as plastic or canvas tarpaulins to ensure the preservation of a stored vehicle if doors, windows, convertible tops, hatchbacks, sunroofs, trunks, or hoods are broken or inoperative;

(B) conducting a written inventory of any unsecured personal property contained in a stored vehicle;

(C) removing and storing all unsecured personal property that is contained in a stored vehicle and for which safekeeping is necessary; and

(D) obtaining motor vehicle registration information for a specific vehicle from the Texas Department of Transportation, Vehicle Titles and Registration Division, or an equivalent out-of-state agency.

(11) License holder or Licensee--The person to which the department issued a license.

(12) Main entrance--The initial point from the public road onto the private property leading to the vehicle storage facility at which a consumer or service recipient enters a vehicle storage facility.

(13) Person--An individual, corporation, organization, business trust, estate, trust, partnership, association, or other legal entity.

(14) Primary lien holder--First lien holder named on the certificate of title in the motor vehicle registration records of the Texas Department of Transportation.

(15) Principal--An individual who:

(A) holds, whether personally, as a beneficiary of a trust, or by other constructive means:

(i) 10% of a corporation's outstanding stock; or

(ii) an ownership interest in a business that is equivalent to a fair market value of more than $25,000;

(B) has the controlling interest in a business;

(C) has a participating interest of more than 10% in the profits, proceeds, or capital gains of a business, regardless of whether the interest is direct or indirect, whether it is held through share, stock, or any other manner, or whether it includes voting rights;

(D) holds a position as a member of the board of directors or other governing body of a business; or

(E) holds a position as an elected officer of a business.

(16) Proof of loss claim form--A form prescribed by the department and submitted by an insurance company certifying right of possession to a vehicle stored at a vehicle storage facility.

(17) Registered owner--Each person in whose name a vehicle is titled under Transportation Code, Chapter 501, or in whose name a vehicle is registered under Transportation Code, Chapter 502.

(18) Vehicle--A motor vehicle subject to registration under Transportation Code, Title 7, Subtitle A, or any other device designed to be self-propelled or transported on a public highway.

(19) Vehicle owner--A person:

(A) in whose name a vehicle is registered under the Certificate of Title Act, Transportation Code, Chapter 501;

(B) in whose name a vehicle is registered under Transportation Code, Chapter 502, or a member of that person's immediate family;

(C) who holds a vehicle through a valid lease agreement;

(D) who is an unrecorded lienholder with a right to possession; or

(E) who is a lienholder that holds an affidavit of repossession and has the right to repossess a vehicle.

(20) Vehicle storage facility (VSF)--A garage, parking lot, or other facility owned or operated by a person other than a governmental entity for storing or parking 10 or more vehicles per year.

(21) Vehicle transfer--Any movement of a vehicle out of a VSF, prior to its release as prescribed in these rules.

§85.20.Exemptions.

(a) These rules do not apply to a vehicle parked or stored at a VSF with the consent of the vehicle's owner.

(b) These rules do not apply to VSFs operated by persons licensed under Texas Occupations Code, Chapter 2301.

§85.200.License Required--Vehicle Storage Facility.

A person may not operate a VSF unless the person holds a VSF license issued by the department.

§85.201.License Requirements--Vehicle Storage Facility License.

To be eligible for a VSF license, an applicant must:

(1) submit a completed application on a department approved form;

(2) pay the fee required under §85.800;

(3) provide proof of insurance required under §85.400;

(4) successfully pass a criminal background check;

(5) provide the name, and address of each partner if the applicant is a partnership;

(6) provide the name, and address of each corporate officer, including the president, secretary, and treasurer, if the applicant is a corporation;

(7) provide the name, and address of each owner of the VSF and the percentage of ownership interest each holds in the facility;

(8) provide the name, and address of the operator or manager of the VSF if it is not operated or managed by one of the owners;

(9) provide the facility's physical address, mailing address, and telephone number;

(10) state the VSF's storage capacity;

(11) state the height of any fence enclosing the VSF and the date it was installed;

(12) include a statement indicating whether the facility has an all weather surface, signs posted in the proper locations, and lighting, as required by these rules; and

(13) adopt the model drug testing policy provided in these rules or file an alternate drug testing policy for approval under these rules.

§85.202.License Approval--Vehicle Storage Facility.

The department may deny a VSF license application if the applicant:

(1) knowingly supplied false or incomplete information on the application;

(2) in the three years preceding the date of application, the applicant, a partner, principal, or officer of the applicant, or the general manager of the applicant, was convicted of:

(A) a felony; or

(B) a misdemeanor punishable by confinement in jail or by a fine exceeding $500; or

(3) the VSF for which the license is sought does not meet the standards for storage facilities established by these rules.

§85.203.License Requirements--Vehicle Storage Facility License Renewal.

(a) To renew VSF license, an applicant must:

(1) submit a completed application on a department-approved form;

(2) pay the applicable fee required under §85.800; and

(3) successfully pass a criminal background check.

(b) To renew and maintain continuous licensure, the renewal requirements under this section must be completed prior to the expiration of the license. A late renewal means the licensee will have an unlicensed period from the expiration date of the expired license to the issuance date of the renewed license. During the unlicensed period, a person may not perform any functions of a VSF that requires a license under this chapter.

(c) Non-receipt of a license renewal notice from the department does not exempt a person from any requirements of this chapter.

§85.204.License Requirements--Vehicle Storage Facility Employee License.

(a) To be eligible for a VSF employee license, an applicant must:

(1) submit a completed application on a department-approved form;

(2) pay the fee required under §85.800; and

(3) successfully pass a criminal background check.

(b) A person may not work at a VSF unless the individual holds a license issued under these rules. A VSF may not employ a person unless the person holds a license issued by the department.

(c) For purposes of these rules, persons operating or managing a VSF as sole proprietor or an incorporated partnership are employees of the VSF and required to obtain a VSF employee license.

§85.205.License Requirements--Vehicle Storage Facility Employee License Renewal.

(a) To renew VSF employee license, an applicant must:

(1) submit a completed application on a department-approved form;

(2) pay the applicable fee required under §85.800; and

(3) successfully pass a criminal background check.

(b) To renew and maintain continuous licensure, the renewal requirements under this section must be completed prior to the expiration of the license. A late renewal means the licensee will have an unlicensed period from the expiration date of the expired license to the issuance date of the renewed license. During the unlicensed period, a person may not perform any the duties of a VSF employee that requires a license under these rules.

(c) Non-receipt of a license renewal notice from the department does not exempt a person from any requirements of this chapter.

§85.206.License--Notice of Proposed Denial; Opportunity to Comply.

(a) If the department recommends denial of an application for a license under these rules, the department shall send written notice of the decision to the applicant at the address shown on the application by certified mail, return receipt requested.

(b) The notice must state the reason for the department's decision.

(c) The notice may state that the decision is temporary pending compliance by the applicant. If the decision is temporary and the applicant complies with these rules not later than the 14th day after the date the applicant receives the notice, the department may approve the application.

§85.207.Department Notifications to Licensee.

Unless otherwise provided for by statute or these rules, the department may send notice of department proposed actions and decisions through email sent to the last email address designated by the licensee.

§85.208.Licenses--License Terms.

A license issued by the department is valid only for the person who applied for the license; applies only to the single VSF or person named on the license; and is valid for 12 months from the date of issuance.

§85.400.Insurance Requirements.

(a) An applicant or VSF licensee is responsible for ensuring the electronic submission of a certificate of insurance when applying for an initial license, submitting a license renewal, changing a business name or affiliation, and upon request of the department.

(b) The certificate of insurance must be obtained from and submitted by an insurance company licensed to do business in Texas pursuant to the Texas Insurance Code.

(c) The facility name and address shown on the proof of insurance form must be the same as the name and address on the license. The VSF licensee is responsible for ensuring that the insurance information on file with the department reflects the correct name and address of the insured facility.

(d) The VSF licensee must obtain insurance for the insured facility that meets the following requirements:

(1) Insurance coverage shall be in an amount of not less than:

(A) $9,000 per claim if the VSF has space to store not more than 50 motor vehicles;

(B) $18,000 per claim if the facility has space to store 51 to 99 motor vehicles; and

(C) $25,000 per claim if the facility has space to store 100 or more motor vehicles.

(2) The VSF licensee's insurance policy must be kept in full force and effect so long as the facility is operating.

(3) The certificate of insurance must contain a provision obligating the insurer to give the department thirty-day notice before the effective date of a policy cancellation date. Notice must be in a form acceptable to the department.

(e) The department may revoke a VSF license if the insurance has been canceled and a replacement policy has not been filed prior to the cancellation date.

§85.450.Inspections--General.

(a) All VSFs shall be inspected periodically, according to a risk-based schedule, or as a result of a complaint. These inspections will be performed to determine compliance with the requirements of the Act and these rules. In addition, the department may make information available to VSF owners and managers on best practices for risk-reduction techniques.

(b) Inspections shall be performed during the normal operating hours of the VSF. The department may conduct inspections under the Act and these rules with or without advance notice.

(c) The department inspector will contact the VSF owner, manager, or representative upon arrival at the VSF, and before proceeding with the inspection.

(d) The VSF owner, manager, or representative shall cooperate with the inspector in the performance of the inspection.

§85.451.Periodic Inspections.

(a) Each VSF shall be inspected at least once every two years.

(b) The VSF owner, manager, or representative must, upon request, make available to the inspector all records, notices and other documents required by these rules.

(c) On completion of the inspection, the VSF shall be advised in writing of the inspection results.

(d) The inspection report will identify violations that must be corrected by the licensee. The report will also indicate the corrective actions required to address the violations, in accordance with §85.453. Additionally, the department may assess administrative penalties and/or administrative sanctions for violations.

(e) Based on the results of the periodic inspection, a VSF may be moved to a risk-based schedule of inspections. The department will notify the owner of the VSF, in writing, if the facility becomes subject to the risk-based inspection schedule and the scheduled frequency of inspection.

§85.452.Risk-based Inspections.

(a) Risk-based inspections are those required in addition to periodic inspections required under §85.451 for VSFs determined by the department to be a greater risk to the public.

(b) To determine which licensee will be subject to risk-based inspections, the department has established criteria and frequencies for inspections.

(c) The owner of the VSF shall pay the fee required under §85.800 for each risk-based inspection.

(d) VSFs subject to risk-based inspections will be scheduled for inspection based on the following risk criteria and inspection frequency:

Figure: 16 TAC §85.452(d)

(e) At the time of inspection of a VSF, the owner, manager, or their representative must, upon request, make available to the inspector, records, notices and other documents required by these rules.

(f) Upon completion of the inspection, the owner of the VSF shall be advised in writing of the results.

(g) The inspection report will identify violations that must be corrected by the VSF. The report will also indicate the corrective actions required to address the violations, in accordance with §85.453. Additionally, the department may assess administrative penalties and/or administrative sanctions for violations.

(h) VSFs on a risk-based inspection schedule that have no significant violations in four consecutive inspections, may be moved to a less frequent risk-based inspection schedule or returned to a periodic schedule of inspections. The department will notify the owner of the VSF, in writing, if there is a change in the VSF's risk-based schedule or if the VSF is returned to a periodic inspection schedule.

§85.453.Corrective Actions Following Inspection.

(a) When corrective actions to achieve compliance are required:

(1) the department shall provide the VSF a list of required corrective actions;

(2) within 10 days after receiving the list of required corrective actions, the VSF shall complete all corrective actions and provide written verification of the corrective actions to the department; and

(3) the department may grant an extension, consistent with established procedures, if satisfactory evidence is presented showing that the time period specified is inadequate to perform the necessary corrections.

(b) The department may assess administrative penalties and/or administrative sanctions for violations or for failure to complete corrective actions timely or provide written verification to the department timely, in accordance with §85.900.

§85.650.Towing and Storage Advisory Board.

(a) The advisory board consists of the eight members appointed by the chairman of the commission with the approval of the commission. The eight members include:

(1) one representative of a towing company operating in a county with a population of less than one-million;

(2) one representative of a towing company operating in a county with a population of one-million or more;

(3) one owner of a vehicle storage facility located in a county with a population of less than one-million;

(4) one owner of a vehicle storage facility located in a county with a population of one-million or more;

(5) one law enforcement officer from a county with a population of less than one-million;

(6) one law enforcement officer from a county with a population of one-million or more;

(7) one parking facility owner; and

(8) one representative of property and casualty insurers who write automobile insurance in this state.

(b) The advisory board shall include representation for each classification of towing.

(c) Advisory board members serve terms of six years, with the terms of two or three members, expiring on February 1 of each odd-numbered year.

(1) A member may not serve more than two full consecutive terms.

(2) If a vacancy occurs during a term, the chairman of the commission will appoint a replacement who meets the qualifications of the open position to serve for the balance of the term.

(d) The chairman of the commission appoints one of the advisory board members to serve as the presiding officer of the advisory board for one year. The presiding officer of the advisory board may vote on any matter before the advisory board.

(e) Advisory board members do not receive compensation. They are, subject to the General Appropriations Act, reimbursed for actual and necessary expenses incurred in performing the duties of the advisory board.

(f) The advisory board meets twice yearly and may meet at other times at the call of the chairman of the commission or the executive director.

(g) The advisory board provides advice and recommendations to the department on technical matters relevant to the administration and enforcement of these rules, including examination content, licensing standards, and continuing education requirements.

§85.700.Responsibilities of the Licensee--Proof of Exempt Status.

Vehicle storage facilities shall be responsible for providing proof regarding whether or not a vehicle was stored with the vehicle owner's consent.

§85.701.Responsibilities of Licensee--Advertising.

A licensee may not engage in false, misleading, or deceptive advertising.

§85.702.Responsibilities of Licensee--Changes to VSF Operator and VSF Employee License.

(a) A licensed VSF operator shall notify the department of changes to any of following information:

(1) change in the business name no later than the effective date of the change;

(2) change of mailing or physical address no later than the effective date of the change;

(3) change in the facility's storage capacity no later than the effective date of the change; or

(4) change in the company's drug testing policy.

(b) VSF employees licensed under these rules must submit a change of mailing address to the department within thirty days of the change.

§85.703.Responsibilities of Licensee--Notice to Vehicle Owner or Lienholder.

(a) Applicability. If a vehicle is removed by the vehicle owner within 24 hours after the VSF receives the vehicle, notification as described in subsections (b) - (i) does not apply.

(b) Notification to owners of registered vehicles. Registered owners of towed vehicles shall be notified in the following manner.

(1) Vehicles registered in Texas. After accepting for storage a vehicle registered in Texas, the VSF shall notify the vehicle's current registered owner and primary lien holder by certified, electronic certified, or registered mail within five days, but in no event sooner than within 24 hours of receipt of the vehicle.

(2) Vehicles not registered in Texas. After accepting for storage a vehicle not registered in Texas, the VSF shall notify the vehicle's current registered owner and all recorded lien holders within 14 days, but in no event sooner than within 24 hours of receipt of the vehicle.

(c) It is a defense to an action initiated by the department for violation of this section that the facility has attempted unsuccessfully and in writing or electronically to obtain information from the governmental entity with which the vehicle is registered.

(d) Notice under this section must:

(1) be correctly addressed;

(2) carry sufficient postage; and

(3) be sent by certified mail, return receipt requested, or electronic certified mail.

(e) Date of notification. Notification will be considered to have occurred when the United States Postal Service places its postmark and to be timely filed if:

(1) the postmark indicates that the notice was mailed within the period described by subsection (a) or (b), or

(2) the notice was published as provided for by subsection (f).

(f) Notice by publication. Notice to the registered owner and the primary lienholder of a vehicle towed to a VSF may be provided by publication in a newspaper of general circulation in the county in which the vehicle is stored if:

(1) the vehicle is registered in another state;

(2) the operator of the storage facility submits to the governmental entity with which the vehicle is registered a written request for information relating to the identity of the registered owner and any lienholder of record;

(3) the identity of the registered owner cannot be determined;

(4) the registration does not contain an address for the registered owner; or

(5) the operator of the storage facility cannot reasonably determine the identity and address of each lienholder.

(g) Notice by publication is not required if each notice sent in accordance with §85.703 is returned because:

(1) the notice was unclaimed or refused; or

(2) the person to whom the notice was sent moved without leaving a forwarding address.

(h) Only one notice is required to be published for an abandoned nuisance vehicle.

(i) Form of notifications. All mailed notifications must be correctly addressed; mailed with sufficient postage; and sent by certified mail, return receipt requested.

(1) All mailed notifications shall state:

(A) the full licensed name of the VSF where the motor vehicle is located, its street address and telephone number, and the hours the vehicle can be released to the vehicle owner;

(B) the daily storage rate, the type and amount of all other charges assessed, and the statement, "Total storage charges cannot be computed until vehicle is claimed. The storage charge will accrue daily until vehicle is released";

(C) the first date for which a storage fee is assessed;

(D) the date the vehicle will be transferred from the VSF and the address to which the vehicle will be transferred if the operator will be transferring a vehicle to a second lot because the vehicle has not been claimed within a certain time;

(E) the date the vehicle was accepted for storage and from where, when, and by whom the vehicle was towed;

(F) the VSF license number preceded by the words "Texas Department of Licensing and Regulation Vehicle Storage Facility License Number" or "TDLR VSF Lic. No.";

(G) a notice of the towed vehicle owner's right under Texas Occupations Code, Chapter 2308, to challenge the legality of the tow involved; and

(H) the name, mailing address, and toll-free telephone number of the department for purposes of directing questions or complaints.

(2) All published notifications shall state:

(A) the full name, street address, telephone number, and VSF license number of the VSF;

(B) a description of the vehicle; and

(C) the total amount of charges assessed against the vehicle.

(3) Notices published in a newspaper may contain information for more than one towed vehicle.

§85.704.Responsibilities of Licensee--Second Notice; Consent to Sale.

(a) If a vehicle is not claimed by a person permitted to claim the vehicle or is not taken into custody by a law enforcement agency under Chapter 683, Transportation Code, before the 41st day after the date notice is mailed or published under §85.703, the operator of the VSF shall send a second notice to the registered owner and the primary lienholder of the vehicle.

(b) If a vehicle is not claimed by a person permitted to claim the vehicle before the 10th day after the date notice is mailed or published under §85.703, the operator of the VSF shall consider the vehicle to be abandoned and send notice of abandonment to a law enforcement agency under Chapter 683, Transportation Code.

(c) Notice under this section must include:

(1) the information listed in §85.703(i);

(2) a statement of the right of the facility to dispose of the vehicle under §85.704; and

(3) a statement that the failure of the owner or lienholder to claim the vehicle before the 30th day after the date the notice is provided is:

(A) a waiver by that person of all right, title, or interest in the vehicle; and

(B) a consent to the sale of the vehicle at a public sale.

(d) Notwithstanding subsection (b), if publication is required for notice under this section, the notice must include:

(1) the information listed in §85.703(i)(2); and

(2) a statement that the failure of the owner or lienholder to claim the vehicle before the date of sale is:

(A) a waiver of all right, title, and interest in the vehicle; and

(B) a consent to the sale of the vehicle at a public sale.

§85.705.Responsibilities of Licensee--Report to Law Enforcement.

(a) Nonconsent towed vehicle towed from private property. A VSF accepting a nonconsent towed vehicle towed from private property must report that tow to the local law enforcement agency for the area from which the vehicle was towed.

(b) The report to law enforcement must be made within two hours of receiving the vehicle. It must include:

(1) the vehicle's license plate number and issuing state;

(2) vehicle identification number; and

(3) location from which the vehicle was towed.

(c) VSF records shall indicate specifically to whom the report required by subsection (b) was reported and in what manner, as well as the time and date of the report, or the unique control or tracking number assigned to the report by local law enforcement documenting the report.

§85.706.Responsibilities of Licensee--Documentation and Records.

(a) Retention of written documentation. Vehicle storage facility licensees must maintain the original written documentation regarding their operations for a period of two years from the date of the release or disposal of the vehicle. Written documentation shall be in the form of:

(1) motor vehicle registration checks;

(2) notification letters;

(3) certified return receipts;

(4) tow tickets (if applicable);

(5) bills for service;

(6) auction receipts;

(7) inventory (if applicable);

(8) certificates of authority to demolish; and

(9) any authorized document used to release a vehicle, including but not limited to a title, affidavit of right of possession and control, or court order.

(b) Minimum information. Each licensee shall keep written records on each vehicle kept or stored at the VSF. These records shall contain:

(1) the year, make, model, color, correct license plate number, state issuing the license, and correct vehicle identification number of the vehicle;

(2) the date, time and location from which the vehicle was towed, and name of person who authorized the tow;

(3) the name of the tow truck driver, driver TDLR license number, the name of the company that towed the vehicle, and the license plate numbers of plates issued to the tow truck under Transportation Code, §502.180, and §504.508;

(4) the date the vehicle was released, the name of the individual to whom the vehicle was released, and the type of identification (Texas drivers license or other state or federally issued photo identification) and identification number provided by the individual to whom the vehicle was released;

(5) the date of any vehicle transfer, and the address of the location to which the vehicle was transferred along with the name of the towing company and tow truck driver, with TDLR license number, who made the transfer;

(6) a copy of any certificate of title issued after the vehicle came into the possession of the VSF, any certificate of authority to demolish, any police auction sales receipt, or any transfer document issued by the State of Texas for the vehicle if vehicle ownership has been transferred due to any action of the VSF or if the vehicle has been disposed of or demolished; and

(7) all amounts received at the time the vehicle was released, including the specific nature of each charge.

(c) Nonconsent tow tickets. The VSF shall ensure that nonconsent tow tickets (if applicable) contain the registered name of the towing company and the certificate of registration number on file with the department.

(d) Availability of documentation. All required documentation shall be made available by the licensee, the licensee's agent, or the licensee's employee for inspection and copying upon request by department personnel, or a law enforcement officer, during the same hours the VSF must ensure that vehicles are available for release to the vehicle owner.

(e) Care and custody of records. Required records shall be kept under the care and custody of the licensee for at least two years from the date the vehicle was released or disposed of.

§85.707.Responsibilities of Licensee--Notice of Complaint Procedure.

(a) Each VSF shall notify the vehicle owner of the department's website and email address, mailing address, and telephone number, for purposes of directing complaints regarding the vehicle storage to the department.

(b) The licensee may use a legible sticker or rubber stamp to convey the required information required by subsection (a). The notice shall be included on:

(1) a sign prominently displayed to the public at the place of payment, with letters at least one inch in height, and a contrasting background; and

(2) the front page of any bill for service.

§85.708.Responsibilities of Licensee--Rights of Owner or Authorized Representative.

(a) A VSF must allow a person claiming to be the owner of a vehicle stored or parked at the facility to have access to the vehicle's glove compartment, console, or other interior storage area if documents necessary to establish the person's identity or ownership of the vehicle are located in the glove compartment, console, or other interior storage area.

(b) When a person demonstrates ownership or right to possession of a motor vehicle stored at a VSF, the person or his/her authorized representative shall:

(1) be entitled to inspect a copy of the tow ticket for the motor vehicle and shall not be required to pay any fees or charges before doing so (reasonable opportunity to view the tow ticket displayed behind a glass enclosure satisfies this requirement);

(2) be given access to, and be allowed to remove, any personal belongings in the vehicle, unless otherwise indicated by a law enforcement officer (the VSF must require a receipt from the person to whom the personal belongings are released for any such property removed from the stored vehicle by the vehicle owner or authorized representative);

(3) have access, during normal business hours, to the vehicle for the purposes of insurance and/or repair estimates; and

(4) have access to the current nonconsent towing fees schedule on file with the department, as prescribed in these rules (relating to Required Posting at Vehicle Storage Facility), for the specific name of the company that towed the vehicle to the VSF.

(c) When right of possession is demonstrated by submission of a proof of loss claim form from an insurance company, subsection (b)(2) does not apply.

§85.709.Responsibilities of Licensee--Unpermitted Tow Trucks Prohibited.

No VSF shall allow any tow truck that is not permitted under Texas Occupations Code, Chapter 2308, to enter onto the grounds of the facility.

§85.710.Responsibilities of Licensee--Release of Vehicles.

Release of vehicles. The licensee shall comply with the following requirements when releasing vehicles.

(1) The licensee shall comply with all provisions of Texas Occupations Code, Chapter 2308, Subchapter J, relating to the rights of the owner of a stored vehicle, including providing the name, address, and telephone number of:

(A) the justice court that has jurisdiction in the precinct in which the VSF is located; and

(B) the name, address and telephone number of the person or law enforcement agency that authorized the tow.

(2) The licensee shall provide the owner or the owner's representative with a tow ticket.

(3) The VSF shall allow the vehicle owner or authorized representative to obtain possession of the vehicle at any time between the hours listed on the facility information sign posted as described in §85.1003, 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 accompanied by a conforming identification;

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

(F) name and address information corresponding to that contained in the files of the Texas Department of Transportation's Vehicle Titles and Registration Division; or

(G) a department approved Affidavit of Right of Possession and Control, which is to be furnished by the VSF upon request (an Affidavit of Right of Possession and Control is not to be used as a repossession instrument).

(4) A VSF may not refuse to release a vehicle to the owner or operator of the vehicle or require a sworn affidavit of the owner or operator of the vehicle solely because the owner or operator presents valid photo identification issued by this state, another state, or a federal agency that includes a different address than the address contained in the title and registration records of the vehicle.

(5) A VSF must accept evidence of financial responsibility (insurance card), as required by §601.051, Transportation Code, as an additional form of identification that establishes ownership or right of possession or control of the vehicle.

(6) Paragraph (3) does not require a VSF to release a vehicle to the owner or operator of the vehicle if the owner or operator of the vehicle does not:

(A) pay the charges associated with delivery or storage of the vehicle; and

(B) present valid photo identification issued by this state, another state, or a federal agency.

(7) If it accepts vehicles 24 hours a day, all VSFs shall have vehicles available for release 24 hours a day within one hour's notice.

(8) If a VSF does not accept vehicles 24 hours a day, such facility must have vehicles available for release within one hour between the hours of 8:00 a.m. and midnight Monday-Saturday and from 8:00 a.m. to 5:00 p.m. on Sundays except for nationally recognized holidays. It is not the intent of this section to require release of vehicles after midnight, and refusal to release after that time, even with notice after 11:00 p.m., is not a violation of this section.

§85.711.Responsibilities of Licensee--Forms of Payment for Release of Vehicle.

In addition to other forms of payment accepted by the VSF, including a governmental VSF, a VSF must accept credit cards, debit cards or electronic checks.

§85.712.Responsibilities of Licensee--Release of Vehicles; Payment by Lienholder or Insurance Company.

(a) A lienholder who repossesses a vehicle delivered to a VSF is liable to the operator of the facility for any money owed to the operator in relation to delivery of the vehicle to or storage of the vehicle in the facility regardless of whether an amount accrued before the lienholder repossessed the vehicle.

(b) An insurance company that pays a claim of total loss on a vehicle in a VSF is liable to the operator of the facility for any money owed to the operator in relation to delivery of the vehicle to or storage of the vehicle in the facility regardless of whether an amount accrued before the insurance company paid the claim.

§85.713.Responsibilities of Licensee--Release of Vehicles From Law Enforcement Hold.

(a) The licensee may not refuse to release the vehicle to the vehicle's owner or insurance company due to nonpayment by the law enforcement agency that directed the towing and storage of the vehicle for evidentiary or examination purposes.

(b) Pursuant to 37 Texas Administrative Code §4.16, relating to commercial vehicle rules and enforcement procedures, a commercial motor vehicle stored at the direction of the Texas Department of Public Safety shall not be released until the amount of delinquent administrative penalty assessed against the vehicle owner has been paid.

§85.714.Responsibilities of Licensee--Provide Insurance Information to Vehicle Owner.

Upon request by the vehicle owner or the vehicle owner's authorized representative, the licensee shall provide the name, address, and telephone number of the insurance company that is providing required liability insurance coverage to the facility, in addition to the facility's insurance policy or certificate number for purposes of filing a claim for loss or damage of property. The insurance information shall be the same as that on file with the department.

§85.715.Responsibilities of Licensee--Publicly Listed Telephone Number.

All VSFs shall have a publicly listed telephone where the VSF can be contacted. If the telephone number is changed from the number in the most recent VSF application, the VSF shall give the department written notice of the change prior to the date the new number is used. The notice shall include the storage lot's name, its location, its license number, the old telephone number, and the new telephone number.

§85.716.Responsibilities of Licensee--Inspection of Stored Vehicles.

When the VSF accepts a vehicle towed without the vehicle owner's consent, the VSF shall inspect the vehicle and note as an addition on the tow ticket any differences from the information previously set out thereon, but shall not write over or deface any prior writing on the tow ticket. If the license plate number or vehicle identification number on the tow ticket is incorrect, the VSF shall note on its records the correct number and notify every previously advised person within 48 hours of noting the correct information.

§85.717.Responsibilities of Licensee--Removal of Parts; Dismantling or Demolishing Stored Vehicles.

Except as provided for by these rules, no parts shall be removed from any vehicle, and no vehicle shall be dismantled or demolished within the storage area of a licensed VSF. Vehicles may be dismantled or demolished only if the VSF has a certificate of title, certificate of authority to demolish, police auction sales receipt, or transfer document issued by the State of Texas for the vehicle being dismantled or demolished.

§85.718.Responsibilities of Licensee--Use of Stored Vehicles Prohibited.

No stored vehicle may be used for personal or business use without the written consent of the vehicle's owner.

§85.719.Responsibilities of Licensee--Reasonable Storage Efforts; Impoundment of Stored Vehicles; Impoundment Fees.

(a) Reasonable storage efforts. A VSF operator shall make reasonable efforts necessary for the storage of a vehicle, such as locking doors, rolling up windows, and closing doors, hatchbacks, sunroofs, trunks, hoods, or convertible tops. Such actions are included in the storage fee as set forth in these rules.

(b) Impoundment of stored vehicles. If doors, windows, convertible tops, hatchbacks, sun roofs, trunks, or hoods are broken or inoperative, materials such as plastic or canvas tarpaulins must be used to ensure the impoundment of the stored vehicle.

(c) Impoundment Fees. A VSF operator is entitled to charge a fee for impoundment if, in addition to the requirements set out in subsection (b), the VSF operator, at a minimum:

(1) conducts a written inventory of any unsecured personal property contained in the vehicle;

(2) removes and stores all such property for which safekeeping is necessary, and specifies such removal and storage on the written inventory; and

(3) obtains motor vehicle registration information for the vehicle from the Texas Department of Transportation or analogous state agency.

§85.720.Responsibilities of Licensee--Repair; Alteration of Stored Vehicles Prohibited.

A vehicle accepted for storage may not be repaired, altered, or have parts removed or replaced without consent of the vehicle owner or his authorized representative.

§85.721.Responsibilities of Licensee--Vehicle Transfers.

When a motor vehicle has been delivered to a VSF, the vehicle may not be moved from that facility within the first 31 days of storage without the vehicle owner's authorization. If it becomes necessary to move the vehicle during the first 31 days of storage because of VSF capacity problems, neither the registered vehicle owner nor recorded lienholder(s) may be assessed an additional charge. The VSF must send notice in accordance with these rules, except that the notice must be sent no less than 72 hours prior to moving the vehicle. If a vehicle is moved from a VSF, the licensee shall:

(1) charge only those fees otherwise permitted by §85.722 after the vehicle is towed to another location without the vehicle owner's permission;

(2) retain records and inform the vehicle owner upon request of the location where the vehicle is at all times from the date on which the vehicle is transferred from the VSF until such time as the vehicle is recovered by the vehicle owner, or a new certificate of title, a certificate of authority to demolish, a police auction sales receipt, or a transfer document is issued by the State of Texas; and

(3) maintain a record of the ultimate disposition of the vehicle, including the date and name of the person to whom the vehicle is released or a description of the document under which the vehicle was sold or demolished.

§85.722.Responsibilities of Licensee--Storage Fees and Other Charges.

(a) For the purposes of this section, "VSF operator" includes a garage, parking lot, or other facility that is:

(1) owned by a governmental entity; and

(2) used to store or park at least 10 vehicles each year.

(b) The fees outlined in this section have precedence over any conflicting municipal ordinance or charter provision.

(c) Notification fee.

(1) A VSF may not charge a vehicle owner more than $50 for notification under these rules. If a notification must be published, and the actual cost of publication exceeds 50% of the notification fee, the VSF operator may recover the additional amount of the cost of publication. The publication fee is in addition to the notification fee.

(2) If a vehicle is removed by the vehicle owner within 24 hours after the date the VSF receives the vehicle, notification is not required by these rules.

(3) If a vehicle is removed by the vehicle owner before notification is sent or within 24 hours from the time VSF receives the vehicle, the VSF operator may not charge a notification fee to the vehicle owner.

(d) Daily storage fee. A VSF operator may not charge less than $5.00 or more than $20 for each day or part of a day for storage of a vehicle that is 25 feet or less in length. A VSF operator shall charge a fee of $35 for each day or part of a day for storage of a vehicle that exceeds 25 feet in length.

(1) A daily storage fee may be charged for any part of the day, except that a daily storage fee may not be charged for more than one day if the vehicle remains at the VSF less than 12 hours. In this paragraph a day is considered to begin and end at midnight.

(2) A VSF that has accepted into storage a vehicle registered in this state shall not charge for more than five days of storage fees until a notice, as prescribed in §85.703 of these rules, is mailed or published.

(3) A VSF operator that has accepted into storage a vehicle not registered in Texas shall not charge for more than five days before the date the request for owner information is sent to the appropriate governmental entity. Such requests shall be correctly addressed, with sufficient postage, and sent by certified mail, or electronic certified mail, return receipt requested, to the governmental entity with which the vehicle is registered requesting information relating to the identity of the last known registered owner and any lienholder of record.

(4) A VSF operator shall charge a daily storage fee after notice, as prescribed in §85.703, is mailed or published for each day or portion of a day the vehicle is in storage until the vehicle is removed and all accrued charges are paid.

(e) Impoundment fee. A VSF operator may charge a vehicle owner an Impoundment fee if Impoundment is performed in accordance with these rules. The Impoundment fee may not exceed $20. If the VSF operator charges a fee for Impoundment, the written bill for services must specify the exact services performed for that fee and the dates those services were performed.

(f) Governmental or law enforcement fees. A VSF operator may collect from a vehicle owner any fee that must be paid to a law enforcement agency, the agency's authorized agent, or a governmental entity.

(g) Environmental hazard fee. A VSF operator may collect from a vehicle owner a fee in an amount set by the commission for the remediation, recovery, or capture of an environmental or biological hazard.

(h) Additional fees. A VSF operator may not charge any additional fees related to the storage of a vehicle other than fees authorized by these rules or a nonconsent-towing fee posted on a nonconsent towing fees schedule on file with the department and posted at the VSF.

§85.723.Responsibilities of Licensee--Disposal of Certain Vehicles.

(a) Applicability. A VSF operator may not dispose of a vehicle unless the operator has complied with all provisions of the Act, including §§2303.151 - 2303.154 and §2303.157, concerning notification and disposal of abandoned vehicles.

(b) Documentation and records. A VSF operator shall keep complete and accurate records of any vehicle disposed of under these rules. These records shall include:

(1) a copy of all forms completed by the VSF and provided to the vehicle buyer;

(2) copies of all notifications issued to the registered owner and all recorded lienholders, regardless of whether the notifications were mailed or published; and

(3) a copy of all forms submitted to governmental authorities to dispose of and demolish an abandoned nuisance vehicle.

§85.724.Responsibilities of Licensee--Disposition of Abandoned Nuisance Vehicle.

(a) A VSF that holds an abandoned nuisance vehicle is not required to send or publish a second notice and is entitled to dispose of the vehicle on the 30th day after the date the notice is mailed or published under §2303.151 or §2303.152 of the Act.

(b) The VSF must:

(1) notify the Texas Department of Transportation that notices under Chapter 683, Transportation Code, have been provided and shall pay a fee to the Texas Department of Transportation; or

(2) notify the appropriate law enforcement agency and pay a fee to that agency.

(c) A law enforcement agency described by subsection (b)(2) may sign a document issued by the Texas Department of Transportation.

(d) Public sale. A VSF may dispose of a vehicle through a public sale in compliance with §2303.157 of the Act. Disputes over the sale or dispersal of proceeds from the sale of the vehicle may be pursued through a court of appropriate jurisdiction.

§85.725.Responsibilities of Licensee--Drug Testing Policy.

(a) A VSF adopting paragraphs (1) - (12) will comply with Texas Occupations Code, §2303.160.

(1) Purpose and Scope. This drug testing policy provides guidance to supervisors and VSF employees about their responsibilities under this policy. Except as stated in paragraph (12), this policy applies to all VSF employees and all VSF job applicants.

(2) Definitions. The words and terms used in this policy shall have their ordinary meaning unless the words or terms are used in Texas Occupations Code, Chapter 2303 or Title 49 Code of Federal Regulation Part 40, in which event the words or terms shall have the meaning designated in those regulations.

(3) Consent Form.

(A) Before a drug test is administered, VSF employees and applicants are required to sign a consent form authorizing the test and permitting release of test results to the medical review officer (MRO) and the company. The consent form shall provide space for employees and applicants to acknowledge that they have been notified of the drug testing policy.

(B) The consent form shall set forth the following information:

(i) the procedure for confirming and verifying an initial positive test result;

(ii) the consequences of a verified positive test result; and

(iii) the consequences of refusing to undergo a drug test.

(C) The consent form also provides authorization for certified or licensed attending medical personnel to take and have analyzed appropriate specimens to determine if the tested drugs were present in the towing operator's and applicant's system.

(4) Compliance with Drug Testing Policy. The failure or refusal by a VSF employee or applicant to cooperate fully by signing necessary consent forms or other required documents or the failure or refusal to submit to any test or any procedure under this policy in a timely manner will be grounds for refusal to hire or for termination. The submission by an applicant or employee of a urine sample that is not his/her own or is a diluted specimen shall be grounds for refusal to hire or for termination.

(5) General Rules. This drug testing policy is governed by these general rules:

(A) VSF employees shall not take or be under the influence of any drugs unless prescribed by the employee's licensed physician.

(B) VSF employees are prohibited from engaging in the manufacture, sale, distribution, use, or unauthorized possession of illegal drugs at any time.

(C) all VSF property is subject to inspection at any time without notice. There should be no expectation of privacy in or on such property. VSF property includes, but is not limited to, vehicles, desks, containers, files, and lockers.

(D) any VSF employee convicted of violating a criminal drug statute shall inform his/her supervisor of such conviction (including pleas of guilty and nolo contendere) within five days of the conviction occurring. Failure to inform the supervisor subjects the employee to disciplinary action up to and including termination for the first offense. The VSF will notify the Texas Department of Licensing and Regulation of the conviction (including pleas of guilty and nolo contendere).

(6) Types of Tests.

(A) Pre-employment. All applicants for positions requiring a VSF employee license, who have received a conditional offer of employment, must take a drug test before receiving a final offer of employment.

(B) Annual. All VSF employees employed by a VSF must complete at least one scheduled drug test each year.

(C) Random Testing. In addition to annual testing, VSF employees are subject to random urine drug testing. Under this policy, annual random test for drugs of at least 25 percent of the total number of VSF employees is required.

(i) A minimum of 15 minutes and a maximum of two hours will be allowed between notification of a VSF employee for random urine drug testing and the actual presentation for specimen collection.

(ii) Random donor selection dates will be unannounced with unpredictable frequency.

(D) Return-to-Duty and Follow-Up.

(i) Any VSF employee who has violated this drug testing policy and is allowed to return to work must submit to a return-to-duty test. Follow-up tests will be unannounced, and at least six tests will be conducted in the first 12 months after a VSF employee returns to duty. Follow-up testing may be extended for up to 60 months following return to duty. The test results of all return to duty and follow-up must be negative.

(ii) The VSF employee will be required to pay for his or her return-to-duty and follow-up tests accordingly.

(7) Drug Testing. The drugs for which tests are required under this policy are marijuana, cocaine, amphetamines, phencyclidine (PCP), opiates, and alcohol.

(8) Specimen Collection Procedures.

(A) All urine specimens will be collected by a laboratory that is certified and monitored by the federal Department of Health and Human Services.

(B) Drug testing procedures include split specimen procedures. Each urine specimen is subdivided into two bottles labeled as a "primary" and a "split" specimen. Only the primary specimen is opened and used for the urinalysis. The split specimen bottle remains sealed and is stored at the laboratory.

(C) If the analysis of the primary specimen confirms the presence of drugs, the VSF employee has 72 hours to request sending the split specimen to another federal Department of Health and Human Services (DHHS) certified laboratory for analysis. The VSF employee will be required to pay for his or her split specimen test(s).

(D) For the VSF employee's protection, the results of the analysis will be confidential except for the testing laboratory. After the MRO has evaluated a positive test result, the VSF employee will be notified, and the MRO will notify the company. The VSF will notify the Texas Department of Licensing and Regulation of the positive test result.

(9) Reporting and Reviewing of Drug Testing Results.

(A) The company shall designate a medical review officer (MRO) to receive, report, and store testing information transmitted by the laboratory. This person shall be a licensed physician with knowledge of substance abuse disorders.

(B) The laboratory shall report test results only to the designated MRO, who will review them in accordance with accepted guidelines and the procedures adopted by the federal Department of Transportation.

(C) Reports from the laboratory to the MRO shall be in writing or by fax. The MRO may talk with the VSF employee by telephone upon exchange of acceptable identification.

(D) Neither the company, the laboratory, nor the MRO shall disclose any drug test results to any other person except under written authorization from the VSF employee, unless such results are necessary in the process of resolution of accident (incident) investigations, requested by court order, or required to be released to parties having a legal right-to-know as determined by state and federal law.

(10) Distribution of Information to VSF Employee. The minimal distribution of information for all VSF employees will include the display and distribution of:

(A) informational material on the physical and mental effects of drugs;

(B) an existing community services hotline number, available drug counseling, rehabilitation, and assistance program;

(C) the company's policy regarding the use of prohibited drugs and/or alcohol; and

(D) the penalties that may be imposed upon VSF employees for violating the drug policy.

(11) Consequences of a Confirmed Positive Drug Test.

(A) Job applicants will be denied employment if their initial positive pre-employment drug test results have been confirmed.

(B) If a VSF employee's positive drug test result has been confirmed, the VSF employee will stand down from VSF duties and may be subject to disciplinary action up to and including termination.

(C) The company may consider the following factors in determining the appropriate disciplinary response: the VSF employee's work history, length of employment, current work assignment, current job performance, and existence of past disciplinary actions.

(D) No disciplinary action may be taken pursuant to this drug policy against VSF employees who voluntarily identify themselves as drug users, obtain counseling, rehabilitation and comply with return to duty and follow-up drug testing.

(12) Exceptions. VSF employees subject to random drug testing under Title 49 Code of Federal Regulation, Part 40 actually selected for testing in any 12-month period are exempt from the annual test requirement, so long as the VSF employee's negative test results are submitted to the MRO.

(b) Independent drug testing policy.

(1) A VSF may file an independent drug testing policy.

(2) The filing must describe how the independent drug testing policy is as stringent as each provision of the model policy set forth in subsection (a).

§85.800.Fees.

(a) Application fees.

(1) Vehicle Storage Facility License

(A) Original Application--$250

(B) Renewal--$250

(2) Vehicle Storage Facility Employee License

(A) Original Application--$75

(B) Renewal--$75

(b) Revised/Duplicate License/Certificate/Permit/Registration--$25

(c) Risk-based Inspections--$150

(d) Late renewals fees for licenses under this chapter are provided under §60.83 of this title (relating to Late Renewal Fees).

(e) All fees are nonrefundable except as provided for by commission rules or statute.

§85.900.Administrative Sanctions and Penalties.

A person that violates Texas Occupations Code, Chapter 2303, a rule, or an order of the Executive Director or Commission relating to Chapter 2303, will be subject to administrative sanctions and/or administrative penalties under Texas Occupations Code, Chapters 51 and 2303 and applicable agency rules.

§85.1000.Technical Requirements--Facility Fencing Requirements.

Enclosure and security of stored vehicles.

(1) Fencing. If not enclosed by a five-foot high fence on or before September 1, 1985, all VSFs shall be completely enclosed by a fence at least six feet high with a gate, which is locked at all times when the licensee or an agent or employee is not at the storage lot. No two VSFs may operate within the same fenced area.

(2) Security of vehicles.

(A) No vehicle may be stored or kept at any licensed VSF unless it is kept inside the fenced or enclosed area at all times. For purposes of this subparagraph, the term "enclosed" shall mean inside a building.

(B) A vehicle accepted for storage in a VSF must be secured to prevent theft of the vehicle or its contents, including but not limited to locking doors, closing windows and hatchbacks, and raising or covering convertible tops.

§85.1001.Technical Requirements--Storage Lot Surface.

All VSFs shall have an all-weather surface such as concrete, asphalt, black-top, stone, macadam, limestone, iron ore, gravel, shell, or caliche, that enables the safe and effective movement of stored vehicles upon all portions of the lot, both under their own power and under tow, at all times, regardless of prevailing weather conditions. The surface shall also be free of overgrown vegetation.

§85.1002.Technical Requirements--Storage Lot Lighting.

All VSFs shall maintain illumination levels adequate for nighttime release of vehicles. The term "adequate" shall mean sufficient to allow inspection of a vehicle for damage at the time of release. At a minimum, there must be one lighting fixture containing at least a 250-watt element for each 1/4 acre of storage area.

§85.1003.Technical Requirements--Storage Lot Signs.

(a) Facility information. All VSFs shall have a clearly visible and readable sign at its main entrance. Such sign shall have letters at least 2 inches in height, with contrasting background, shall be visible at 10 feet, and shall contain the following information:

(1) the registered name of the storage lot, as it appears on the VSF license;

(2) street address;

(3) the telephone number for the owner to contact in order to obtain release of the vehicle;

(4) the facility's hours, within one hour of which vehicles will be released to vehicle owners; and

(5) the storage lot's state license number preceded by the phrase "VSF License Number."

(b) All VSFs shall have a sign setting out the charge for storage and all other fees, which may be charged by the storage lot, including notification and Impoundment fees. The sign shall include all forms of payments the VSF accepts for any charge associated with delivery or storage of a vehicle. The sign must be located so it is clearly visible to a vehicle owner at the place of payment and shall have letters at least 1 inch in height with a contrasting background.

(c) Nonconsent towing fees schedule. All VSFs shall conspicuously place a sign, at the place of payment, which states in 1-inch letters that: "Applicable schedules of nonconsent towing fees will be provided for viewing upon request by persons claiming vehicles." The nonconsent towing fees provided for viewing must match the nonconsent towing fees schedule on file with the department, as provided in these rules (relating to Nonconsent Towing Fees Schedule).

(d) Instruments accepted for release of vehicle. All VSFs shall have a sign describing the documents that may be presented by the vehicle owner or his/her authorized representative to obtain possession of the vehicle. This sign shall list all instruments as described these rules, and shall also state: "Affidavit of Right of Possession and Control Furnished Upon Request." This sign shall be located so it is clearly visible to a vehicle owner at the place of payment, and have letters at least 1 inch in height with a contrasting background.

(e) Combination signs. A VSF may combine the signs described in subsections (b), (c), and (d), if the combination sign meets the requirements of each of the separate signs.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 28, 2008.

TRD-200800449

William H. Kuntz, Jr.

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 9, 2008

For further information, please call: (512) 463-7348

16 TAC §§86.1, 86.10, 86.200 - 86.215, 86.400, 86.450 - 86.453, 86.500, 86.600, 86.650, 86.700 - 86.710, 86.800, 86.900, 86.901, 86.1000 - 86.1002

The Texas Department of Licensing and Regulation ("Department") proposes new 16 Texas Administrative Code, Chapter 86, §§86.1, 86.10, 86.200 - 86.215, 86.400, 86.450 - 86.453, 86.500, 86.600, 86.650, 86.700 - 86.710, 86.800, 86.900, 86.901, and 86.1000 - 86.1002, regarding the regulation and permitting of tow trucks, and the licensing of towing operators and towing companies. These rules are necessary to implement House Bill 2094, 80th Legislature, Regular Session, 2007.

New §86.1 provides statutory authority for rule adoption.

New §86.10 defines terms used in the statute and the rules, including "advisory board," "applicant," "certificate of insurance," " commission," "consent tow," "conspicuous," "contested case," "department," "driver's license," "license holder or licensee," "nonconsent tow," "parking facility," "parking facility owner," "permit holder," "property owners' association," "public roadway," "tow truck," "towing company," "towing operator," "unauthorized vehicle," "vehicle," "vehicle owner," and "vehicle storage facility."

New §86.200 provides that a tow truck permit is required.

New §86.201 establishes the requirements for obtaining an incident management-towing permit.

New §86.202 establishes the requirements for obtaining a private property-towing permit.

New §86.203 establishes the requirements for obtaining a consent-towing permit.

New §86.204 establishes criteria for approval or denial of towing permit applications and the form of the issued permit.

New §86.205 establishes the annual permit renewal requirements for towing permits.

New §86.206 describes the content of a department issued cab card that is required for each tow truck. The section also provides for card replacement and surrender of the card on request of the department.

New §86.207 provides that a non-transferable towing operator's license is required and is valid statewide for one year from the date of issuance.

New §86.208 establishes the requirements for obtaining an incident management towing operator license.

New §86.209 establishes the requirements for obtaining a private property towing operator license.

New §86.210 establishes the requirements for obtaining a consent towing operator license.

New §86.211 establishes the annual license renewal requirements for towing operators.

New §86.212 provides that a towing company license is required and establishes the requirements for obtaining a license.

New §86.213 establishes criteria for approval or denial of a towing company license and the form of the license.

New §86.214 establishes the annual renewal requirements for a towing company license.

New §86.215 provides an additional method of notice to licensees and permit holders using the last designated e-mail address.

New §86.400 establishes the insurance requirements for obtaining and renewing a tow truck permit.

New §86.450 establishes the general requirements of a department initiated inspection of a towing company.

New §86.451 provides for bi-annual inspections of a towing company during normal business hours.

New §86.452 establishes the criteria for a risk-based inspection of a towing company.

New §86.453 provides the procedures for corrective actions following a department initiated inspection of a towing company.

New §86.500 requires electronic filing of nonconsent-towing fee schedules for nonconsent tows.

New §86.600 requires the department to file conforming nonconsent towing fee schedules on the internet without making a determination of reasonableness.

New §86.650 provides for a Towing and Storage Advisory Board. This section lists criteria of board membership, terms of office, meeting times, and board responsibilities.

New §86.700 requires that a towing company tow vehicles subject to nonconsent towing to a licensed vehicle storage facility, unless the vehicle owner agrees to a different location.

New §86.701 lists the information that must be displayed on each side of a permitted tow truck.

New §86.702 requires permit holders and licensees to notify the department of changes in name, address, and drug testing policy.

New §86.703 requires a towing company to notify the department of a change in ownership.

New §86.704 prohibits a towing company from charging unauthorized fees without written authority from the vehicle owner.

New §86.705 establishes towing company standards of conduct including: prohibitions against giving gifts of value to parking facility owners, having monetary interests in parking facilities from which it tows vehicles, nonconsent tow charges in unincorporated areas, compliance with posting requirements, record keeping, towing only from authorized locations, and charging fees consistent with those on file with the department.

New §86.706 provides that a towing company post fees at each vehicle storage facility to which it tows vehicles, signs must be conspicuous, posted fees must be provided to vehicle owners, and match fees on file with the department.

New §86.707 requires each towing company to annually review towing fees on file with the department and correct any outdated fee.

New §86.708 requires each permitted tow truck display a current license plate that includes the words "Tow Truck."

New §86.709 requires a tow company to issue a tow ticket to the vehicle owner. The tow ticket must only contain charges directly related to towing the vehicle.

New §86.710 provides a model drug testing policy for employees of a towing company; protects privacy rights of employees; and contains due process requirements.

New §86.800 establishes the fees for initial applications, renewal applications, inspection fees, and late renewals.

New §86.900 provides for administrative penalties and/or sanctions against a person that violates the statute or rules.

New §86.901 provides for cease and desist orders issued by the executive director to a person that violates the statute or rules.

New §86.1000 lists the minimum safety equipment that must be carried by each tow truck and establishes minimum operating limits for trucks issued a tow truck permit by the department.

New §86.1001 lists the minimum safety clothing that must be worn by towing operators and specifies the forms of identification that must be carried by each towing operator issued a towing operator license by the department.

New §86.1002 requires a towing company keep records for two years, and that an out-of-state towing company maintain records in Texas, or reimburse the department for expenses incurred for the review of out-of-state records.

William H. Kuntz, Jr., Executive Director of the Department, has determined that for each year of the first five-year period the new rules are in effect, there will be costs to the Department to enforce and administer these rules. The expected cost is approximately $4,000,000 per year. Fees, which are included in the rules, have been set to generate revenues sufficient to cover these costs. There is no anticipated fiscal implication for units of local government.

Mr. Kuntz has determined that for each year of the first five-year period the new rules are in effect, the public will benefit from clarity in what is required by law of a towing company and towing operators. The rules also provide consumer protection for individuals whose vehicles are the subject of a nonconsent tow. The public will also benefit from the enhanced integrity of towing companies and their employees.

Mr. Kuntz also has determined that for each year of the first five-year period the new rules are in effect, there will be economic costs imposed on persons and businesses that are required to obtain permits and licenses under these new rules. These costs may include initial permit and licensing fees, annual renewal fees, insurance premiums, expenses for maintaining records and conducting employee drug testing.

Mr. Kuntz has also determined that, for each year of the first five-year period the proposed new rules are in effect, costs related to licensing fees, insurance, and drug testing may represent an adverse economic effect on small businesses that operate towing companies. However, the licensing fees, insurance, and drug testing costs are imposed by statute; therefore, no regulatory alternative is available. Accordingly, no regulatory flexibility analysis is necessary.

Comments on the proposal may be submitted by mail to Caroline Jackson, Legal Assistant, General Counsel's Office, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711; by facsimile to (512) 475-3032; or by e-mail to erule.comments@license.state.tx.us. The deadline for comments is 30 days after publication in the Texas Register.

The new rules are proposed under Texas Occupations Code, Chapter 2308, which directs the Department's governing body, the Texas Commission of Licensing and Regulation ("Commission"), to adopt rules to establish the requirements for permitting tow trucks and licensing towing operators and towing companies, and to adopt standards of conduct for license and permit holders; and Texas Occupations Code Chapter 51, which authorizes the Commission to adopt rules as necessary to implement this chapter and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapter 51 and Chapter 2308. No other statutes, articles, or codes are affected by the proposed new rules.

§86.1.Authority and Purpose.

These rules are adopted under the authority of the Texas Occupations Code, Chapter 51 and Chapter 2308. These rules increase the safety of vehicle towing operators by insuring that only qualified professionals tow vehicles.

§86.10.Definitions.

The following words and terms, when used in this chapter will have the following meanings, unless the context clearly shows otherwise:

(1) Advisory board--The Towing and Storage Advisory Board.

(2) Applicant--The person or entity submitting an application for a permit or license issued by the department.

(3) Certificate of insurance--A certificate prescribed by and filed with the department in which an insurance carrier or surety company, approved in this state, warrants that a towing company for whom the certificate is filed has the minimum coverage as required by §86.400.

(4) Commission--The Texas Commission of Licensing and Regulation.

(5) Consent tow--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.

(6) Conspicuous--Written in a size, color, and contrast so as to be readily noticed and understood.

(7) Contested case--A proceeding, including a licensing proceeding, in which the legal rights, duties, or privileges of a party are to be determined by a state agency after an opportunity for adjudicative hearing.

(8) Department--The Texas Department of Licensing and Regulation.

(9) Driver's License--Has the meaning assigned by §521.001, Transportation Code.

(10) License holder or Licensee--The person to which the department issued a license.

(11) Nonconsent tow--Any tow of a motor vehicle that is not a consent tow.

(12) Parking facility--Public or private property used, wholly or partly, for restricted or paid vehicle parking. The term includes:

(A) a restricted space on a portion of an otherwise unrestricted parking facility; and

(B) a commercial parking lot, a parking garage, and a parking area serving or adjacent to a business, church, school, home, apartment complex, property governed by a property owners' association, or government-owned property leased to a private person, including:

(i) a portion of the right-of-way of a public roadway that is leased by a governmental entity to the parking facility owner; and

(ii) the area between the facility's property line abutting a county or municipal public roadway and the center line of the roadway's drainage way or the curb of the roadway, whichever is farther from the facility's property line.

(13) Parking facility owner--

(A) an owner or operator of a parking facility, including a lessee, employee, or agent of an owner or operator;

(B) a property owners' association having control under a dedicatory instrument, as that term is defined in §202.001, Property Code, over assigned or unassigned parking areas; or

(C) a property owner having an exclusive right under a dedicatory instrument, as that term is defined in §202.001, Property Code, to use a parking space.

(14) Permit holder--The person to which the department issued a permit.

(15) Property owners' association--Has the meaning assigned by §202.001, Property Code.

(16) Public roadway--A public street, alley, road, right-of-way, or other public way, including paved and unpaved portions of the right-of-way.

(17) Tow truck--A motor vehicle, including a wrecker, equipped with a mechanical device used to tow, winch, or otherwise move another motor vehicle. The following motor vehicles are not considered tow trucks:

(A) a motor vehicle owned and used exclusively by a governmental entity, including a public school district;

(B) a motor vehicle towing:

(i) a race car;

(ii) a motor vehicle for exhibition; or

(iii) an antique motor vehicle;

(C) a recreational vehicle towing another vehicle;

(D) a motor vehicle used in combination with a tow bar, tow dolly, or other mechanical device if the vehicle is not operated in the furtherance of a commercial enterprise; or

(E) a motor vehicle that is controlled or operated by a farmer or rancher and that is used for towing a farm vehicle.

(18) Towing company--An individual, association, corporation, or other legal entity that controls, operates, or directs the operation of one or more tow trucks over a public roadway in this state but does not include a political subdivision of the state.

(19) Towing operator--The person to which the department issued a towing operator license.

(20) Unauthorized vehicle--A vehicle parked, stored, or located on a parking facility without the consent of the parking facility owner.

(21) Vehicle--A device in, on, or by which a person or property may be transported on a public roadway. The term includes an operable or inoperable automobile, truck, motorcycle, recreational vehicle, or trailer but does not include a device moved by human power or used exclusively on a stationary rail or track.

(22) Vehicle owner--A person:

(A) named as the purchaser or transferee in the certificate of title issued for the vehicle under Chapter 501, Transportation Code;

(B) in whose name the vehicle is registered under Chapter 502, Transportation Code, or a member of the person's immediate family;

(C) who holds the vehicle through a lease agreement;

(D) who is an unrecorded lienholder entitled to possess the vehicle under the terms of a chattel mortgage; or

(E) who is a lienholder holding an affidavit of repossession and entitled to repossess the vehicle.

(23) Vehicle storage facility--A vehicle storage facility, as defined by Texas Occupations Code, §2303.002 that is operated by a person who holds a license issued under Texas Occupations Code, Chapter 2303 to operate the facility.

§86.200.Tow Truck Permit--Required.

(a) A tow truck may not be used for towing on the public streets or roads of this state unless an appropriate tow truck permit has been issued by the department.

(b) A separate permit is required for each tow truck.

(c) A tow truck permit is valid for not more than one year from the date of issuance. A tow truck permit shall expire on the same date as the license issued by the department to the tow truck company.

§86.201.Tow Truck--Permit--Incident Management Towing.

(a) An incident management towing permit is required for a tow truck used to perform any nonconsent tow initiated by a peace officer, including a tow allowed under §545.3051, Transportation Code.

(b) To be eligible for an incident management towing permit, an applicant must:

(1) submit a completed application on a department-approved form;

(2) pay the fee required under §86.800;

(3) verify that the tow truck is equipped to tow light-duty or heavy-duty vehicles according to the manufacturer's guidelines.

(4) provide proof of insurance required under §86.400; and

(5) successfully pass a criminal background check.

(c) An incident management towing permit may also be used for private property towing and consent towing.

§86.202.Tow Truck Permit--Private Property Towing.

(a) A private property towing permit is required for a tow truck used to perform a nonconsent tow authorized by a parking facility owner.

(b) To be eligible for a private property towing permit, an applicant must:

(1) submit a completed application on a department-approved form;

(2) pay the fee required under §86.800;

(3) verify that the tow truck is equipped to tow light-duty or heavy-duty vehicles according to the manufacturer's guidelines.

(4) provide proof of insurance required under §86.400; and

(5) successfully pass a criminal background check.

(c) A private property towing permit may also be used for consent towing but not for incident management towing.

§86.203.Tow Truck Permit--Consent Towing.

(a) A consent towing permit is required for a tow truck used to perform a consent tow authorized by the vehicle owner, as defined in §86.10(22).

(b) To be eligible for a consent towing permit, an applicant must:

(1) submit a completed application on a department-approved form;

(2) pay the fee required under §86.800;

(3) verify that the tow truck is equipped to tow light-duty or heavy-duty vehicles according to the manufacturer's guidelines.

(4) provide proof of insurance required under §86.400; and

(5) successfully pass a criminal background check.

(c) A consent towing permit may not be used for nonconsent towing, including incident management towing and private property towing.

§86.204.Tow Truck Permit--Approval and Issuance.

(a) The department will issue a permit under these rules to an applicant who meets the requirements for a permit. The department may deny an application if the applicant has had a permit revoked under these rules.

(b) The department will issue a certificate containing a single unique permit number for each tow truck, regardless of whether the permit holder holds more than one permit.

§86.205.Tow Truck Permit--Renewal.

(a) The department will send written notice to permit holders at least 30 days before the permit expires. The notice will be sent to the permit holder's last known address according to the records of the department.

(b) To renew a permit, a permit holder must:

(1) submit a completed application on a department-approved form;

(2) pay the fee required under §86.800;

(3) verify that the tow truck is equipped to tow light-duty or heavy-duty vehicles according to the manufacturer's guidelines.

(4) provide proof of insurance required under §86.400; and

(5) successfully pass a criminal background check.

(c) To renew and maintain continuous licensure, the renewal requirements under this section must be completed prior to the expiration of the permit. A late renewal means the permit holder will have an un-permitted period from the expiration date of the expired permit to the issuance date of the renewed permit. During the un-permitted period, a tow truck may not be used for towing on the public roadways of this state.

(d) Non-receipt of a permit renewal notice from the department does not exempt a person from any requirements of these rules.

§86.206.Tow Truck Cab Cards.

(a) The department will issue a cab card for each tow truck issued a permit. The cab card will:

(1) show the permit number of the certificate issued under these rules;

(2) show the type of permit issued;

(3) show the vehicle unit number;

(4) show the vehicle identification number; and

(5) contain a statement that the vehicle has a permit issued under these rules.

(b) The department will issue a cab card when the department issues or renews a permit.

(c) A permit holder must keep a copy of the cab card in the cab of each permitted tow truck.

(d) If an original cab card is lost, stolen, destroyed, or mutilated, if it becomes illegible, or if it otherwise requires replacement, the permit holder, can request that the department issue a new cab card.

(e) The department may require a permit holder to surrender the original cab card if the permit is suspended or revoked.

§86.207.Licensing Requirements--Towing Operator License.

(a) A person shall not perform towing operations without a towing operator license issued by the department.

(b) Each type of towing operator license is:

(1) valid for one year from the date of issuance;

(2) valid throughout this state; and

(3) nontransferable.

§86.208.Licensing Requirements--Incident Management Towing Operator License.

(a) An incident management towing operator's license is required to operate a tow truck permitted or required to be permitted under these rules.

(b) An applicant for an incident management towing operator's license must:

(1) submit a completed application on a department-approved form;

(2) be a licensed Texas driver;

(3) be certified by the National Drivers Certification Program of the Towing and Recovery Association of America or another certification program approved by the department;

(4) successfully pass a criminal background check; and

(5) pay the fee required under §86.800.

§86.209.Licensing Requirements--Private Property Towing Operator License.

(a) A private property towing operator's license is needed to operate a tow truck permitted or required to be permitted under these rules.

(b) An applicant for a private property towing operator's license must:

(1) submit a completed application on a department-approved form;

(2) be a licensed Texas driver;

(3) be certified by the National Drivers Certification Program of the Towing and Recovery Association of America or another certification program approved by the department;

(4) successfully pass a criminal background check; and

(5) pay the fee required under §86.800.

§86.210.Licensing Requirements--Consent Towing Operator License.

(a) A consent towing operator's license is needed to operate a tow truck permitted or required to be permitted under these rules.

(b) An applicant for a consent towing operator's license must:

(1) submit a completed application on a department-approved form;

(2) be a licensed Texas driver; and

(3) successfully pass a criminal background check; and

(4) pay the fee required under §86.800.

§86.211.Licensing Renewal--Towing Operators.

(a) The department will send written notice to licensees at least 30 days before the license expires. The notice will be sent to the licensee's last known address according to the records of the department.

(b) A licensee may renew a license under this chapter by:

(1) submitting a completed application on a department-approved form;

(2) pay the fee required under §86.800;

(3) meet the applicable continuing education requirements; and

(4) successfully pass a criminal background check.

(c) To renew and maintain continuous licensure, the renewal requirements under this section must be completed prior to the expiration of the license. A late renewal means the licensee will have an unlicensed period from the expiration date of the expired license to the issuance date of the renewed license. During the unlicensed period, a tow truck operator may not operate a tow truck on the public roadways of this state.

(d) Non-receipt of a license renewal notice from the department does not exempt a person from any requirements of these rules.

§86.212.Licensing Requirements--Towing Company License Required.

(a) A person shall not operate a towing company without a towing company license issued by the department.

(b) To be eligible for a towing company license, an applicant must:

(1) submit a completed application on a department-approved form;

(2) pay the fee required under §86.800;

(3) successfully pass a criminal background check;

(4) provide the name, and address of each partner if the applicant is a partnership;

(5) provide the name, and address of each corporate officer, including the president, secretary, and treasurer, if the applicant is a corporation;

(6) provide the name, and address of each owner of the towing company and the percentage of ownership interest each holds in the company;

(7) provide the name, and address of the operator or manager of the towing company if it is not operated or managed by one of the owners;

(8) provide the towing company's physical address, mailing address, and telephone number; and

(9) adopt the drug testing policy provided in these rules or file a drug testing policy for approval under these rules.

§86.213.Towing Company License--Approval and Issuance.

(a) Upon receipt of an application for a towing company license, the department will review the application to verify the qualifications of the applicant.

(b) If an applicant is qualified under these rules, the department will issue a towing company license to the applicant.

(c) If an applicant is determined to be not qualified under these rules, the department will advise the applicant in writing of the reasons the applicant is not qualified or the deficiencies in the application.

(d) The department may deny a towing company license application if the applicant:

(1) has had a license revoked under these rules;

(2) failed to file a completed application; or

(3) provides false, misleading, or deceptive information in the application.

(e) The department will issue a certificate containing a single unique license number for each towing company.

§86.214.Towing Company License Renewal.

(a) The department will notify the license holder at least 30 days before the date a license expires. The notice will be in writing and sent to the license holder's last known address according to the records of the department.

(b) To renew a towing company license, an applicant must:

(1) submit a completed application on a department-approved form;

(2) pay the applicable fee required under §86.800;

(3) successfully pass a criminal background check.

§86.215.Department Notifications to Licensee or Permit Holder.

Unless otherwise provided for by statute or these rules, the department may send notice of department proposed actions and decisions through email sent to the last email address designated by the licensee or permit holder.

§86.400.Insurance Requirements--Tow Truck Permits.

(a) An applicant for a tow truck permit is responsible for ensuring the electronic submission of a certificate of insurance when applying for an initial license or permit, submitting a license or permit renewal, changing a business name or affiliation, and upon request of the department.

(b) The certificate of insurance must be obtained from and submitted by an insurance company licensed and authorized to do business in Texas pursuant to the Texas Insurance Code.

(c) The name and address of the applicant, licensee, or permit holder shown on the certificate of insurance form must be the same as the name and address on the application or permit. The applicant or permit holder is responsible for ensuring that the insurance information on file with the department reflects the correct name and address of the insured.

(d) Coverage.

(1) Tow truck permit applicants and permit holders must obtain insurance for each permitted tow truck that meets the following requirements:

(A) Incident Management Towing

(i) a minimum of $500,000 liability insurance per tow truck per incident, which is combined single limit liability for bodily injury to or death of an individual per occurrence, loss or damage (excluding cargo) per occurrence, or both; and

(ii) a minimum of $50,000 of cargo or cargo on hook insurance per tow truck per incident.

(B) Private Property Towing

(i) a minimum of $300,000 of liability insurance per tow truck per incident, which is combined single limit liability for bodily injury to or death of an individual per occurrence, loss or damage (excluding cargo) per occurrence, or both; and

(ii) a minimum of $50,000 of cargo or cargo on hook insurance per tow truck per incident.

(C) Consent Towing. A minimum of $300,000 of liability insurance per tow truck per incident, which is combined single limit liability for bodily injury to or death of an individual per occurrence, loss or damage (excluding cargo or cargo on hook) per occurrence, or both.

(2) Insurance covering permitted tow trucks must be kept in full force and effect at all times.

(3) The certificate of insurance must contain a provision obligating the insurer give the department thirty days notice before the effective date of a policy cancellation date.

(e) Replacement insurance filing.

(1) The department will consider a new insurance filing as the current record of financial responsibility required by this section if:

(A) the new insurance filing is received by the department; and

(B) a cancellation notice has not been received for previous insurance filings.

(2) The department may revoke a license if the insurance has been canceled and a replacement policy has not been filed prior to the cancellation date.

(f) Insolvency of insurance carrier. If an insurer for a tow truck permit holder becomes insolvent, is placed in receivership, or has its certificate of authority suspended or revoked and if the tow truck permit holder no longer has insurance coverage as required by these rules, the tow truck permit holder shall file with the department, not later than the 10th day after the date the coverage lapses:

(1) evidence of insurance as required by these rules; and

(2) an affidavit that:

(A) indicates that an accident from which the tow truck permit holder may incur liability did not occur while the coverage was not in effect; or

(B) contains a plan acceptable to the department indicating how the tow truck permit holder will satisfy claims of liability against the tow truck permit holder for an accident that occurred while the coverage was not in effect.

(g) Notices. The department will notify the Texas Department of Public Safety and other law enforcement agencies of each tow truck permit that has been revoked for failure to maintain the required insurance coverage.

§86.450.Inspections--General.

(a) A towing company shall be inspected periodically, according to a risk-based schedule, or as a result of a complaint. These inspections are performed to determine compliance with the requirements of the Act and these rules. In addition, the department may make information available to licensees and managers on best practices for risk-reduction techniques.

(b) Inspections shall be performed during the normal operating hours of the towing company. The department may conduct inspections under the Act and these rules with or without advance notice.

(c) The department inspector will contact the towing company owner, manager, or their representative upon arrival at the towing company, and before proceeding with the inspection.

(d) The towing company owner, manager, or their representative shall cooperate with the inspector in the performance of the inspection.

§86.451.Periodic Inspections.

(a) Each towing company shall be inspected at least once every two years.

(b) The towing company owner, manager, or their representative must, upon request, make available to the inspector all records, notices and other documents required by these rules.

(c) Upon completion of the inspection, the owner manager, or representative shall be advised in writing of the results of the inspection. The inspection report will indicate whether the inspection was approved or not approved, and will describe any violations identified during the inspection.

(d) For inspections that are not approved, the inspection report will identify violations that must be corrected by the owner. The report will also indicate the corrective actions required to address the violations, in accordance with §86.453. Additionally, the department may assess administrative penalties and/or administrative sanctions for violations.

(e) Based on the results of the periodic inspection, a towing company may be moved to a risk-based schedule of inspections. The department will notify the owner of the towing company, in writing, if the company becomes subject to the risk-based inspection schedule and the scheduled frequency of inspection.

§86.452.Risk-based Inspections.

(a) Risk-based inspections are those required in addition to periodic inspections required under §86.451, for towing companies determined by the department to be a greater risk to the public.

(b) To determine which towing company will be subject to risk-based inspections, the department has established criteria and frequencies for inspections.

(c) The owner of the towing company shall pay the fee required under §86.800 for each risk-based inspection, in a manner established by the department.

(d) Each towing company subject to risk-based inspections will be scheduled for inspection based on the following risk criteria and inspection frequency:

Figure: 16 TAC §86.452(d)

(e) At the time of inspection of a towing company, the owner, manager, or their representative must, upon request, make available to the inspector, records, notices and other documents required by these rules.

(f) Upon completion of the inspection, the owner of the towing company shall be advised in writing of the results of the inspection.

(g) The inspection report will identify violations that must be corrected by the towing company. The report will also indicate the corrective actions required to address the violations, in accordance with §86.453. Additionally, the department may assess administrative penalties and/or administrative sanctions for violations.

(h) A towing company on a risk-based inspection schedule that has no significant violations in four consecutive inspections, may be moved to a less frequent risk-based inspection schedule or returned to a periodic schedule of inspections. The department will notify the owner of the towing company if there is a change in the towing company's risk-based schedule or if the towing company is returned to a periodic inspection schedule.

§86.453.Corrective Actions Following Inspection.

(a) When corrective actions to achieve compliance are required:

(1) the department shall provide the towing company a list of required corrective modification(s);

(2) within 10 days after receiving the list of required corrective actions, the owner shall complete all corrective actions and provide written verification of the corrective actions to the department; and

(3) the department may grant an extension, consistent with established procedures, if satisfactory evidence is presented showing that the time period specified is inadequate to perform the necessary corrections.

(b) The department may assess administrative penalties and/or administrative sanctions for violations or for failure to complete corrective actions timely or provide written verification to the department timely, in accordance with §86.900.

§86.500.Reporting Requirements--Towing Company.

(a) Before January 31 of each year, a towing company must submit to the department a schedule showing each towing fee the towing company charges or collects for nonconsent towing.

(1) Format. The fee schedule must be:

(A) on plain white paper measuring 8-1/2 inches by 11 inches; and

(B) clearly legible, using black ink, and typed in 12-point font.

(2) Information. The nonconsent towing fees schedule must include:

(A) the name and license number of the towing company as on file with the department;

(B) the effective date(s) of the fees; and

(C) if different fees are assessed for different geographic areas, a clear delineation between fees assessed for one area and fees assessed for another.

(b) If a political subdivision begins regulating nonconsent tow fees, the towing company must report the fees to the department before the 30th day after the municipal ordinance goes into effect.

(c) Any changes in nonconsent tow fees regulated by a political subdivision must be reported to the department by the towing company before the 30th day after the effective date of the change.

(d) Complete lists required. Each time a towing company files a nonconsent towing fees schedule, the towing company must include a complete list of all nonconsent towing fees charged by the towing company. Partial towing fee schedules are not acceptable. Each filing is a complete schedule of all nonconsent towing fees of the company.

§86.600.Responsibilities of the Department--Nonconsent Fee Schedules.

The department will:

(1) make filings of acceptable nonconsent towing fees schedules available on its internet website;

(2) reject any filing of nonconsent towing fees schedules that are not filed in accordance with this section; and

(3) make no determination as to the reasonableness of towing fees.

§86.650.Towing and Storage Advisory Board.

(a) The advisory board consists of the eight members appointed by the chairman of the commission with the approval of the commission. The eight members include:

(1) one representative of a towing company operating in a county with a population of less than one-million;

(2) one representative of a towing company operating in a county with a population of one-million or more;

(3) one owner of a vehicle storage facility located in a county with a population of less than one-million;

(4) one owner of a vehicle storage facility located in a county with a population of one-million or more;

(5) one law enforcement officer from a county with a population of less than one-million;

(6) one law enforcement officer from a county with a population of one-million or more;

(7) one parking facility owner; and

(8) one representative of property and casualty insurers who write automobile insurance in this state.

(b) The advisory board shall include representation for each classification of towing.

(c) Advisory board members serve terms of six years, with the terms of two or three members, expiring on February 1 of each odd-numbered year.

(1) A member may not serve more than two full consecutive terms.

(2) If a vacancy occurs during a term, the chairman of the commission will appoint a replacement who meets the qualifications of the open position to serve for the balance of the term.

(d) The chairman of the commission appoints one of the advisory board members to serve as the presiding of the advisory board for one year. The presiding officer of the advisory board may vote on any matter before the advisory board.

(e) Advisory board members do not receive compensation. They are, subject to the General Appropriations Act, reimbursed for actual and necessary expenses incurred in performing the duties of the advisory board.

(f) The advisory board meets twice yearly and may meet at other times at the call of the chairman of the commission or the executive director.

(g) The advisory board provides advice and recommendations to the department on technical matters relevant to the administration and enforcement of these rules, including examination content, licensing standards, and continuing education requirements.

§86.700.Responsibilities of Tow Truck Permit Holder--Storage of Towed Vehicles.

Unless the towing company agrees to take the vehicle to a location designated by the vehicle's owner, a towing company that makes a nonconsent tow shall tow the vehicle to a vehicle storage facility operated by a person who holds a vehicle storage facility license issued by the department.

§86.701.Responsibilities of Tow Truck Permit Holder--Tow Truck Signage.

(a) A tow truck permit holder must display on each permitted tow truck:

(1) the permit holder's name;

(2) the permit holder's telephone number;

(3) the city and state where the permit holder is located; and

(4) the permit number for the tow truck.

(b) The information required to be displayed must be:

(1) printed in letters and numbers that are at least two inches high and in a color that contrasts with the color of the background surface; and

(2) permanently affixed in conspicuous places on both sides of the tow truck.

§86.702.Responsibilities of Licensee and Permit Holder--Change Name, Address, or Drug Testing Policy.

(a) A licensee or permit holder shall notify the department of changes to any of following information:

(1) change in the licensee's or permit holder's name no later than the effective date of the change;

(2) change of the licensee's or permit holder's mailing or physical address no later than the effective date of the change; or

(3) change in the licensee's drug testing policy no later than 30 days before the effective date of the change.

(b) The requirements of subsection (a)(3) apply only to a towing company regulated by these rules.

§86.703.Responsibilities of Towing Company License Holder--Change of Ownership.

A towing company license holder must file an original application for licensure when there is a change in the ownership of the company, including but not limited to, a corporate merger or a change in the sole proprietorship or partnership.

§86.704.Responsibilities of Towing Company License Holder--Unauthorized Fees.

Unless authorized by Texas Occupations Code, Chapter 2308 or 16 Texas Administrative Code Chapter 85 or these rules, a towing company may not charge or collect a fee without the prior written consent of the vehicle owner or operator.

§86.705.Responsibilities of Towing Company License Holder--Standards of Conduct.

(a) A towing company may not directly or indirectly give anything of value to a parking facility owner in connection with the removal of a vehicle from a parking facility.

(b) A towing company may not have a direct or indirect monetary interest in a parking facility from which the towing company for compensation removes unauthorized vehicles.

(c) In an area in which no political subdivision regulates the fees that may be charged or collected for a nonconsent tow from private property, a towing company must comply with Texas Occupations Code, §2308.204.

(d) A towing company may not tow a vehicle to a vehicle storage facility unless the vehicle storage facility is in compliance with the required postings in Texas Occupations Code, §2308.207.

(e) A towing company may not remove and store an unauthorized vehicle unless authorized by Texas Occupations Code, §2308.255.

(f) A towing company may not perform a nonconsent tow unless the property from which the vehicle is towed is in compliance with Texas Occupations Code, §§2308.301 - 2308.305.

(g) Except as authorized by Texas Occupations Code, §§2308.351 - 2308.354, a towing company may not perform a nonconsent tow from:

(1) a leased right-of-way;

(2) an area between a parking facility and a public right-of-way;

(3) a public right-of-way; or

(4) a public roadway.

(h) A towing company may not contract for the removal from a parking facility of a vehicle that does not display an unexpired license plate or registration insignia or a valid inspection certificate, unless before the tow, the towing company receives copies of documents showing compliance with Texas Occupations Code, §2308.253(e).

(i) A licensee or permit holder may not charge a fee for a nonconsent tow that is greater than the fee listed in the schedule most recently filed with the department.

(j) A licensee must keep record of every nonconsent tow including, but not limited to, the following information:

(1) vehicle description, including license or vehicle identification number, if available;

(2) the specific rule or statutory provision sanctioning the tow;

(3) each fact justifying the nonconsent tow;

(4) location vehicle towed from; and

(5) vehicle storage location.

(k) A towing operator must allow department personnel to inspect a tow truck permitted under these rules.

§86.706.Responsibilities of Towing Company License Holder--Required Postings at Vehicle Storage Facility (VSF).

(a) A towing company must provide its nonconsent towing fees schedule to all VSF's to which the towing company delivers vehicles for storage.

(b) The nonconsent towing fees schedule provided to the VSF and posted at the VSF must match the nonconsent towing fees schedule on file with the department.

(c) The nonconsent towing fees schedule must be posted in a conspicuous location at the VSF.

(d) The nonconsent towing fees schedule must be made available to any requestor during normal business hours of the VSF.

§86.707.Responsibilities of Towing Company License Holder--Review of Nonconsenting Fees Schedule.

A towing company that performs nonconsent tows shall review its current nonconsent towing fees schedule posted on the department website each year before January 31 to determine if it is current. The towing company must file a new nonconsent towing fees schedule when the current filing is outdated.

§86.708.Responsibilities of Towing Company License Holder--Tow Truck License Plates.

A towing company or tow truck operator must not operate or cause a tow truck to be operated on the public roadways of this State unless the tow truck displays current license plates that includes the words "Tow Truck."

§86.709.Responsibilities of Towing Company License Holder--Tow Ticket.

(a) A towing company must prepare and issue a tow ticket for each nonconsent tow.

(b) A copy of the tow ticket must be given to the vehicle owner and a copy delivered to the vehicle storage facility, or place agreed upon by the towing operator and vehicle owner.

(c) The tow ticket shall only authorize charges directly related to towing the vehicle to a designated location authorized by subsection (b).

§86.710.Responsibilities of Towing Company Licensee--Drug Testing Policy.

(a) A towing company adopting paragraphs (1) - (12) of this subsection will comply with Texas Occupations Code, §2308.158.

(1) Purpose and Scope. This drug testing policy provides guidance to supervisors and towing operators about their responsibilities under this policy. Except as stated in paragraph (12), this policy applies to all towing operators and all towing operator job applicants.

(2) Definitions. The words and terms used in this policy shall have their ordinary meaning unless the words or terms are used in Texas Occupations Code, Chapter 2308 or Title 49 Code of Federal Regulation Part 40, in which event the words or terms shall have the meaning designated in those regulations.

(3) Consent Form.

(A) Before a drug test is administered, towing operators and applicants are required to sign a consent form authorizing the test and permitting release of test results to the medical review officer (MRO) and the company. The consent form shall provide space for employees and applicants to acknowledge that they have been notified of the drug testing policy.

(B) The consent form shall set forth the following information:

(i) the procedure for confirming and verifying an initial positive test result;

(ii) the consequences of a verified positive test result; and

(iii) the consequences of refusing to undergo a drug test.

(C) The consent form also provides authorization for certified or licensed attending medical personnel to take and have analyzed appropriate specimens to determine if the tested drugs were present in the towing operator's or applicant's system.

(4) Compliance With Drug Testing Policy. The failure or refusal by a towing operator or applicant to cooperate fully by signing necessary consent forms or other required documents or the failure or refusal to submit to any test or any procedure under this policy in a timely manner will be grounds for refusal to hire or for termination. The submission by an applicant or employee of a urine sample that is not his/her own or is a diluted specimen shall be grounds for refusal to hire or for termination.

(5) General Rules. This drug testing policy is governed by these general rules:

(A) towing operators shall not take or be under the influence of any drugs unless prescribed by the employee's licensed physician.

(B) towing operators are prohibited from engaging in the manufacture, sale, distribution, use, or unauthorized possession of illegal drugs at any time.

(C) all towing company property is subject to inspection at any time without notice. There should be no expectation of privacy in or on such property. Towing company property includes, but is not limited to, vehicles, desks, containers, files, and lockers.

(D) any towing operator convicted of violating a criminal drug statute shall inform his/her supervisor of such conviction (including pleas of guilty and nolo contendere) within five days of the conviction occurring. Failure to inform the supervisor subjects the employee to disciplinary action up to and including termination for the first offense. The towing company will notify the Texas Department of Licensing and Regulation of the conviction (including pleas of guilty and nolo contendere).

(6) Types of Tests

(A) Pre-employment. All applicants for positions requiring a towing operators, who have received a conditional offer of employment, must take a drug test before receiving a final offer of employment.

(B) Annual. All towing operators employed by a towing company must complete at least one scheduled drug test each year.

(C) Random Testing. In addition to annual testing, towing operators are subject to random urine drug testing. Under this policy, annual random test for drugs of at least 25 percent of the total number of towing operators is required.

(i) A minimum of 15 minutes and a maximum of two hours will be allowed between notification of a towing operator for random urine drug testing and the actual presentation for specimen collection.

(ii) Random donor selection dates will be unannounced with unpredictable frequency.

(D) Return-to-Duty and Follow-Up.

(i) Any towing operator who has violated this drug testing policy and is allowed to return to work must submit to a return-to-duty test. Follow-up tests will be unannounced, and at least six tests will be conducted in the first 12 months after a towing operator returns to duty. Follow-up testing may be extended for up to 60 months following return to duty. The test results of all return to duty and follow-up must be negative.

(ii) The towing operator will be required to pay for his or her return-to-duty and follow-up tests accordingly.

(7) Drug Testing. The drugs for which tests are required under this policy are marijuana, cocaine, amphetamines, phencyclidine (PCP), opiates, and alcohol.

(8) Specimen Collection Procedures.

(A) All urine specimens will be collected by a laboratory that is certified and monitored by the Federal Department of Health and Human Services.

(B) Drug testing procedures include split specimen procedures. Each urine specimen is subdivided into two bottles labeled as a "primary" and a "split" specimen. Only the primary specimen is opened and used for the urinalysis. The split specimen bottle remains sealed and is stored at the laboratory.

(C) If the analysis of the primary specimen confirms the presence of drugs, the towing operator has 72 hours to request sending the split specimen to another Federal Department of Health and Human Services (DHHS) certified laboratory for analysis. The towing operator will be required to pay for his or her split specimen test(s).

(D) For the towing operator's protection, the results of the analysis will be confidential except for the testing laboratory. After the MRO has evaluated a positive test result, the towing operator will be notified, and the MRO will notify the company. The company will notify the Texas Department of Licensing and Regulation of the positive test result.

(9) Reporting and Reviewing of Drug Testing Results.

(A) The company shall designate a medical review officer (MRO) to receive, report, and store testing information transmitted by the laboratory. This person shall be a licensed physician with knowledge of substance abuse disorders.

(B) The laboratory shall report test results only to the designated MRO, who will review them in accordance with accepted guidelines and the procedures adopted by the Federal Department of Transportation.

(C) Reports from the laboratory to the MRO shall be in writing or by fax. The MRO may talk with the towing operator by telephone upon exchange of acceptable identification.

(D) Neither the company, the laboratory, nor the MRO shall disclose any drug test results to any other person except under written authorization from the towing operator, unless such results are necessary in the process of resolution of accident (incident) investigations, requested by court order, or required to be released to parties having a legal right-to-know as determined by state and federal law.

(10) Distribution of Information to Towing Operators. The minimal distribution of information for all towing operators will include the display and distribution of:

(A) informational material on the physical and mental effects of drugs;

(B) an existing community services hotline number, available drug counseling, rehabilitation, and assistance program;

(C) the company's policy regarding the use of prohibited drugs and/or alcohol; and

(D) the penalties that may be imposed upon towing operators for violations of the drug policy.

(11) Consequences of a Confirmed Positive Drug Test.

(A) Job applicants will be denied employment if their initial positive pre-employment drug test results have been confirmed.

(B) If a towing operator's positive drug test result has been confirmed, the towing operator will stand down from towing operation duties and may be subject to disciplinary action up to and including termination.

(C) The company may consider the following factors in determining the appropriate disciplinary response: the towing operator's work history, length of employment, current work assignment, current job performance, and existence of past disciplinary actions.

(D) No disciplinary action may be taken pursuant to this drug policy against towing operators who voluntarily identify themselves as drug users, obtain counseling, rehabilitation and comply with return to duty and follow-up drug testing.

(12) Exceptions. Towing operators subject to random drug testing under Title 49, Code of Federal Regulation, Part 40 who are actually selected for testing in any 12 month period are exempt from the annual test requirement, so long as the towing operator's negative test results are submitted to the MRO.

(b) Independent drug testing policy.

(1) A towing company may file an independent drug testing policy.

(2) The filing must describe how the independent drug testing policy is as stringent as each provision of the model policy set forth in subsection (a).

§86.800.Fees.

(a) Application Fees

(1) Permit Tow Truck

(A) Original Application--$75

(B) Renewal--$75

(C) Duplicate Permit--No charge

(2) Tow Company License

(A) Original Application--$350

(B) Renewal--$350

(C) Duplicate License--$25

(3) Operator License

(A) Original Application--$100

(B) Renewal--$100

(C) Duplicate License--$25

(b) Risk-based inspections--$150

(c) Late renewal fees for licenses and permits issued under this chapter are provided under §60.83 of this title (relating to Late Renewal Fees)

(d) All fees are nonrefundable except as provided for by commission rules or statute.

§86.900.Sanctions and Administrative Penalties.

A person that violates Texas Occupations Code, Chapter 2308, a rule, or an order of the Executive Director or Commission relating to Chapters 2308, will be subject to administrative sanctions and/or administrative penalties under Texas Occupations Code, Chapters 51 and 2308 and applicable agency rules.

§86.901.Cease and Desist Order.

The executive director may issue a cease and desist order as necessary to enforce this chapter if the executive director determines the action is necessary to prevent a violation of this chapter and to protect public health and safety.

§86.1000.Technical Requirements--Tow Truck Safety Equipment and Truck Operations.

(a) Each tow truck must carry proper safety equipment. Proper equipment includes, but is not limited to, the following:

(1) At least one 10 pound or two 5 pound multiple purpose fire extinguisher, in good working condition;

(2) Magnetic tow lights, unless wireless, with appropriate cable and cushions to protect a vehicle's finish;

(3) Tow dollies as appropriate;

(4) Straps and tie downs as specified by the tow truck manufacturer;

(5) Gloves;

(6) Wheel chocks;

(7) Five gallon trash receptacle;

(8) Broom and shovel;

(9) Thirty-six inch crow bar; and

(10) Triangle reflectors, flares, cones, safety lights or other appropriate safety signals.

(b) Each tow truck shall:

(1) have a legible manufacturer's data plate indicating the capacity of the boom, the winch or the carry mechanism; or

(2) have a document in the truck from the manufacturer stating the capacity of the boom, the winch or the carry mechanism.

(c) Every hydraulic line on each tow truck must be free of leaks and be in good working condition free of defects.

(d) The winch must not exceed the capacity of the boom or leak oil.

(e) The cables must be as specified by the manufacturer and be in good condition, within manufacturer guidelines.

(f) Each tow truck must have a copy of the annual Department of Transportation inspection.

§86.1001.Technical Requirements--Towing Operator Safety Clothing and Identification.

(a) Towing operators, as a condition of their license must comply with the protective clothing policy.

(b) Towing operators must wear at all times when using or assisting in the use or operation of a licensed tow truck on a road or road related area:

(1) a uniform, clearly marked with the tow company's name as it appears on department records.

(2) a reflective vest or reflective jacket at all times while working outside the tow truck; the reflective vest or reflective jacket must meet the ANSI/ISEA 207-2006 requirements for high visibility safety apparel.

(c) During daylight hours, a fluorescent shirt may be worn instead of the reflective vest or jacket; the fluorescent shirt must meet the ANSI/ISEA 207-2006 requirements for high visibility safety apparel.

(d) When performing towing operations, all tow truck operators must carry and openly display the appropriate TDLR issued original towing operator license.

§86.1002.Technical Requirements--Towing Company Records.

(a) General records to be maintained. Except as provided in paragraphs (1) and (2), every towing company shall maintain at a principal office in Texas all records and information required by the department.

(1) Texas firms. If a towing company wishes to maintain records at a location other than its principal office in Texas, the towing company shall make a written request to the department. A tow company may not begin maintaining records at an alternate location until the request is approved by the department.

(2) Out-of-state firms. A towing company whose principal business address is located outside the state of Texas shall maintain records required under this section at its principal office in Texas. Alternatively, a towing company may maintain such records at an out-of-state facility if the towing company reimburses the department for necessary travel expenses and per diem for any inspections or investigations conducted under these rules.

(b) Preservation and destruction of records. All books and records generated by a tow company must be maintained for not less than two years at the towing company's principal business address.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 28, 2008.

TRD-200800450

William H. Kuntz, Jr.

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: March 9, 2008

For further information, please call: (512) 463-7348