Tow Hearing Model Findings of Fact and Conclusions of Law with Commentary

The Problem – Absence of Findings of Fact and Conclusions of Law in Tow Hearings.  

Believe it or not, one of the most common mistakes in Texas towing law is not made by towing companies, parking facility owners, attorneys, nor even pro-se 452 hearing applicants.  It is made by the justice courts.  The Texas Towing and Booting Act (Tex. Occ. Code Chapter 2308 and referred to herein as the “TTBA”) requires that written findings of fact and conclusions of law be issued in each 452 Hearing. See Tex. Occ. Code § 2308.458(d) (Lexis 2014).  Notwithstanding this mandate, most courts simply fail to issue written findings of fact and conclusions of law.

This author believes that justice courts fail to issue the TTBA-required findings of fact and conclusions of law for several reasons.  First, a certain amount of vagueness in the TTBA makes conclusions of law difficult.  For example, the TTBA requires a determination of presence or lack of probable cause, but fails to define what constitutes “probable cause.”  Thus, Justices of the Peace are left to guess as to the meaning and interpret it in a vacuum.   The lack of case law interpreting the TTBA except in limited circumstances adds difficulty to the task.  For a discussion of how some courts have addressed probable cause, CLICK HERE.

Second, Justices of the Peace are not accustomed to issuing written findings of fact and conclusions of law.  Justice courts are not courts of record.  Typically, no stenographers are present to record testimony.  The lack of record makes findings of fact and conclusions of law that are not requested and provided in draft form by a tow hearing applicant difficult because the Court has only its memory upon which to rely.  While this issue could be resolved by requiring that a stenographer be present at the 452 Hearing, the amount in controversy does not likely justify this expense.

Finally, and probably most importantly, an appeal from a justice court to county court is tried de novo.  This rule applies to Tow Hearings.  See Tex. Occ. Code Ann. § 2308.459  A de novo means that the case is tried as if the tow hearing in justice court never happened.  While this would at first support the idea that findings of fact and conclusions of law should not be required at the justice court level, there is nothing in the rules that prevents a county court judge from reviewing the justice court record.  Findings of fact and conclusions of law can serve as a primer for the county court to review in preparing for the hearing as well as allow a county or appellate court to discuss how a justice court ruled on the issues in a tow hearing.  Lastly, court orders based on findings of fact and conclusions of law that correctly follow the TTBA and relevant case law are unlikely be appealed.

Solution – Uniform Model Findings of Fact and Conclusions of Law for Tow Hearings.

Creating a record and documenting the basis for the court’s decision can be of great benefit to Tow Hearing applicants, towing companies, parking facility owners, and appellate court judges.  For these reasons, this author believes that all justices of the peace should issue findings of fact and conclusions of law as required by the TTBA.  This sounds at first as though it would impose a heavy burden on our justices of the peace, but that is not the case.

As discussed in other posts, the issues to be decided at a tow hearing are few.  The facts necessary for the issuance of orders are also quite limited. The combination of these two facts makes drafting model findings of fact and conclusions of law quite easy.  To prove it, we have provided the following Model Tow Hearing Findings of Fact and Conclusions of Law (the “Model Findings and Conclusions”).

The Model Findings and Conclusions includes necessary findings, optional findings, conclusions, and selections for the various persons appearing at a tow hearing.  Additionally, the Model Findings and Conclusions provides appropriate court orders that are either mandatory under TTBA § 2308.452 or discretionary under TTBA § 2308.458(e).  Author comments and citations to appropriate areas of case law, statutes, and rules are also included for the benefit of those seeking to learn more about how tow hearings work.

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.