Tow Hearing Filing Deadlines – Does 14 Days mean 14 Days?

Request for Tow Hearing Filing Deadlines.

The Texas Towing and Booting Act, Chapter 2308 of the Texas Occupations Code (the “TTBA” or “Act”), provides that an owner or operator of a vehicle that has been towed or booted without the owner or operator’s consent can request a hearing on whether probable cause existed for the removal or booting of the vehicle.  Tex. Occ. Code § 2308.452 (Lexis 2013).  This hearing is referred to as a “Tow Hearing” or a “452 Hearing.”  The TTBA contains strict deadlines on when Tow Hearing requests are due and when the Tow Hearing must be conducted.  A person entitled to a hearing Tow Hearing must deliver a written request for the hearing to the court “before the 14th day after the date the vehicle was removed and placed in the vehicle storage facility, excluding Saturdays, Sundays, and legal holidays.” Tex. Occ. Code § 2308.456(a). A person who fails to deliver the request within the statutory time period is deemed to have waived his or her right to the Tow Hearing.  Tex. Occ. Code § 2308.456(d).  

At first glance, TTBA appears to grant a 14 day time period to apply for a Tow Hearing, but this may not really be the case.  In reality, the deadline could be shorter or longer than 14 days depending a particular court’s interpretation of § 2308.456(a).

Practice Note – How Justice Courts Usually Treat the Deadline in § 2308.456(a). 

This author has seen many justice courts treat the deadline for filing a Tow Hearing request as a hard 14 day deadline.  Most courts count the days in that deadline pursuant to Tex. R. Civ. P. 4.  In other words, justice courts tend to exclude the day of the tow and count 14 days after that as the filing deadline. While this treatment is consistent with a filing deadline calculated under the Texas Rules of Civil Procedure it is not necessarily consistent with the language of the Texas Towing and Booting Act.

The Problem with “Before” rather than “On or Before” – a Potential 13 Day Deadline?

As stated above, the language of the statute requires that the request for a Tow Hearing be delivered to the court before the 14th day after the vehicle was towed or booted.  Tex. Occ. Code § 2308.456(a).  The Texas Code Construction Act provides that words and phrases shall be read in context and construed according to the rules of grammar and common usage. Tex. Gov. Code § 311.011(a).  Webster’s Dictionary defines “before” to mean “in advance” or “at an earlier time.”  Thus, reading § 2308.456(a) in plain english seems to imply not that the 14th day is the filing deadline, but the day in advance of the 14th day.  In other words, the deadline appears to be 11:59 pm on the 13th day following the date the vehicle was towed or booted, as that would be the last minute before the 14th day.

This interpretation is further supported by the fact that the legislature chose not to include the language “on or before” or “within 14 days” from the date the vehicle was towed or booted.  A fundamental canon of statutory construction is “Expressio Unius Est Exclusio Alterius” or the expression of one subject, object, or idea is the exclusion of another subject, object, or idea.  Conceivably, therefore, had the Legislature intended that the Texas Towing and Booting act provide for a request for a tow hearing “on or before the 14th day” or “before the end of the 14th day” following the date the vehicle was towed, it would have chosen that language.  Instead, the Act simply says “before the 14th day.” Tex. Occ. Code 2308.456(a).  By including “before,” the legislature excluded the idea of “on or before.”

Skipping Weekends and Holidays – a Longer than 14 Day Filing Deadline? 

Adding to the confusion, the Texas Towing and Booting Act § 2308.456(a) appears to exclude all weekends and legal holidays from its deadline calculation. See Id. at § 2308.456(a) (stating that the request must be filed with the court before the 14th day after the date the vehicle was removed and placed in the vehicle storage facility, excluding Saturdays, Sundays, and legal holidays).    If weekends and legal holidays are not “counting days,” then the TTBA grants more than 13 (or 14) calendar days to file because there will be at least four days (the weekends) skipped in calculating the filing deadline.  However, this filing deadline calculus is not without its quirks.

Excluding weekends and holiday would grant additional filing time to those who are towed on a Saturday versus those who are towed the Monday following.  For example, assume that John is towed on Saturday and Susan’s car was towed on the following Monday.  Each of John and Susan will have to file their respective applications for a tow hearing “before the 14th day after the date” each was towed. Tex. Occ. Code § 2308.456(a).  However, despite the fact that John was towed two days prior to Susan, his filing deadline would be only one day before that of Susan.  While this results in each person having the same number of counting days to file in weekdays/non-holidays, it results in one applicant having an additional weekend day to prepare and locate counsel for their hearing.

In the example above, John would have 18 calendar days to file his response when weekends were included and the day the car was towed was excluded.  Similarly, Susan would have 17 calendar days until the deadline. Each of John and Susan would have more than 14 calendar days to file, but in order to know that they would have had to engage in a rigorous analysis of the statute, learned to skip weekends, and known the court’s holiday schedule.  This is far too complex a system for a brief statute designed to protect everyday Texans. It would be far simpler for the statute to give a round number, such as 20 days, include weekends and holidays in day counting, and extend the filing deadline in the event that the 20th day fell on a weekend or a holiday to the next day that the courts are open.

The Texas Towing and Booting Act refers to its “before the 14th day after” deadline as a “14 day period,” which it is clearly not.  See Tex. Occ. Code § 2308.456(c.) (stating “The 14-day period for requesting a hearing under Subsection (a) does not begin until the date on which the towing company…”).  This reference does nothing but add to the likelihood of a confused consumer and a missed filing deadline.  Imagine for a moment the difficulty a justice court judge would have keeping a straight face while explaining to a pro-se litigant that despite the mention of a “14 day period” in the this consumer protection statute, there are not really 14 “counting days” so he has lost his right to a Tow Hearing.  Now imagine the frustration of that pro-se applicant with the justice system.

The Safest Route – Calculating a Safe Filing Deadline by Ignoring the Statute’s Language.

Ironically, one way to calculate a safe filing date is to ignore the complicated wording of the Texas Towing and Booting Act and pretend that Tow Hearing requests have a strict 10 calendar day filing deadline.  Under this method, an applicant would simply count 10 calendar days after the date the car was towed or booted and file the application within that time period (or on the first day following when the courts are open).  While this procedure does not follow the letter of the Act at all, it is easy to remember and results in a guaranteed timely filing.

In Summary.

Regardless of how a court interprets § 2308.456(a), Tow Hearing deadlines should be easy to calculate. An unclear filing deadline has no place in a statute designed to help the public.  It has even less business in a statute that is so frequently read and relied on by pro-se litigants.  The statute should be clear, concise, and unequivocal.  Otherwise, the Texas Towing and Booting Act may work an injustice on the very people it was designed to protect.

 

Ryan (that's me) also has a life outside of the law. I love spending time with my beautiful wife and my dog in the Heights, live music, and long walks on the beach.

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