Badaiki v. Tia Smith (Tex.App.- Houston [14th Dist.] Sep. 24, 2009)(per curiam)
(
nonconsent tow of vehicle, tow hearing in Justice court, appeal from JP court)
AFFIRMED: Per Curiam     
Before Justices Brock Yates, Frost and Brown   
14-08-00224-CV  Fidelis Badaiki v. Tia Smith, Rita Casey, Overhaulin Tow Company
and West Houston Auto Storage    
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge:
Linda Storey

M E M O R A N D U M   O P I N I O N

Appellant Badaiki Fidelis appeals from the determination by the trial court that appellee, Overhaulin' Tow
Company, had probable cause to tow and store appellant's vehicle.  In nine issues, appellant contends (1)
his constitutional right to confront witnesses was violated because not all of the defendants were
represented at trial, (2) there was no probable cause to tow his vehicle because his apartment complex did
not display the appropriate “handicapped parking" sign or “unauthorized vehicle sign," (3) the towing
company could not tow his vehicle because it did not carry liability insurance, and (4) the storage facility
could not charge an impound fee or notification fee.  We affirm.

Factual and Procedural Background

On October 15, 2007, Overhaulin' Towing Company towed appellant's vehicle from his apartment complex
parking lot because his vehicle was parked in a space designated for exclusive use of a vehicle transporting
a disabled person and did not display special license plates or a disabled parking placard.  

Pursuant to Chapter 685 of the Transportation Code, appellant filed a request for a tow hearing in justice
court in Harris County.  See Act of Sept. 1, 1995, 74th Leg., ch. 165 § 1 (amended 2007) (current version at
Tex. Occ. Code Ann. §  2308.452 (Vernon Supp. 2008).[1] (“The owner or operator of a vehicle that has
been removed and placed in a vehicle storage facility without the consent of the owner or operator of the
vehicle is entitled to a hearing on whether probable cause existed for the removal and placement.").  At
such a hearing, the burden of proof is on the person who requested the hearing.  Tex. Occ. Code Ann. §
2308.458(b-1).  The issues to be determined in the hearing are whether probable cause existed for the
removal and placement of the vehicle, and whether a towing charge imposed or collected in connection with
removal or placement of the vehicle was greater than the amount authorized by the statutue.  Tex. Occ.
Code Ann. § 2308.458(c).  

The justice court held a hearing and filed findings of fact and conclusions of law in which it found that the
towing company had probable cause to remove and store appellant's vehicle.

Appellant appealed the justice court's decision to the County Civil Court at Law where the county court held
a hearing.  At the hearing, appellant testified that his vehicle had been towed from his apartment complex
for allegedly parking in a space reserved for vehicles transporting disabled persons.  He testified that he
phoned the towing company about damage to his vehicle, but the towing company informed him that it did
not carry liability insurance.  He further testified that there was no sign warning that unauthorized vehicles
would be towed, nor was there a sign permanently mounted on a pole, post, permanent wall, or permanent
barrier as mandated by the Occupations Code.  

Mark Denison, the owner of Overhaulin' Towing Company, testified that his company carried liability
insurance, and that it had posted compliant signs warning that unauthorized vehicles would be towed.  He
further produced photographs of appellant's vehicle being towed from a parking space designated for
vehicles transporting disabled persons.  The county court issued findings of fact and conclusions of law in
which it found that the towing company had probable cause to tow and store the vehicle because the vehicle
was parked in a space designated for exclusive use of a vehicle transporting a disabled person and did not
display special plates or a disabled parking placard.

Analysis

Confrontation Clause

In his first and eighth issues, appellant argues his sixth amendment right to confront the witnesses against
him was violated because not all of the defendants appeared in court.  At the beginning of the hearing,
appellant complained that not all of the defendants had appeared in county court.  The court explained to
appellant that he was obligated to subpoena the defendants to ensure their appearance. On appeal,
appellant argues their non-appearance violated his right to confront the witnesses against him.

The Sixth Amendment to the United States Constitution provides, “In all criminal prosecutions, the accused
shall enjoy the right to . . . be confronted with the witnesses against him[.]" U.S. Const. amend. VI. (emphasis
added)  “Nonconsenttow hearings are not criminal matters.  See Tex. Att'y Gen. Op. No. GA-0316 (2005).
[2]  Therefore, because the sixth amendment right to confrontation only applies to criminal prosecutions, it
does not apply to a nonconsent tow hearing pursuant to the Occupations Code.  

Appellant's first and eighth issues are overruled.

Proper Signage

In his second, fourth, and fifth issues, appellant argues that the towing of his vehicle was without probable
cause because the apartment complex did not display proper signs for the parking space or warning that
vehicles would be towed.  See Tex. Occ. Code Ann. §  2308.251-.305 (Vernon Supp. 2008).

The Occupations Code provides that a parking facility owner may require a vehicle to be removed and
stored at the owner's or operator's expense if signs that comply with Subchapter G prohibiting unauthorized
vehicles are located on the parking facility at the time of towing and for the preceding 24 hours and remain
installed at the time of towing.  Tex. Occ. Code Ann. §  2308.252(a)(1).  Subchapter G provides that an
unauthorized vehicle may not be towed unless a sign prohibiting unauthorized vehicles on a parking facility
is (1) facing and conspicuously visible to the driver of the vehicle that enters the facility, (2) located on the
right or left side of each driveway or at intervals along the entrance if curbs, access barriers, landscaping,
or driveways do not establish definite vehicle entrances onto a parking facility and the width of an entrance
exceeds 35 feet, (3) permanently mounted on a pole, post, permanent wall, or permanent barrier, (4)
installed on the parking facility, and (5) installed so that the bottom edge of the sign is no lower than five
feet and no higher than eight feet above ground level.  Tex. Occ. Code Ann. §  2308.301(a).

Appellant argues that the sign warning that his vehicle would be towed was not permanently mounted on a
pole, post, permanent wall, or permanent barrier.  The record in this case contains photographs of signs
warning of a “tow away zone."  The photograph reflects that the sign is posted on iron gates at the entrance
to the parking lot.  The towing company's owner testified that the signs were posted at every entrance to the
apartment complex parking lot.  Under the Occupations Code, as the person challenging probable cause,
appellant bore the burden of proving that the signs did not comply with the code.  We find no evidence that
challenges the evidence presented by the towing company.

Appellant cites no authority requiring a sign designating a parking space for disabled persons to be
permanently mounted.  The photographs admitted at trial showed that the parking space was clearly marked
with a permanent sign painted on the pavement designating the space as one reserved for vehicles
transporting disabled persons.  Therefore, appellant failed to meet his burden of proof to show the tow of
his vehicle was without probable cause due to improper signage.  Appellant's second, fourth, and fifth
issues are overruled.

Insurance

In his third issue, appellant argues the towing company was not authorized to tow his vehicle because the
company did not carry liability insurance.  Appellant testified that when he phoned the towing company, the
company informed him that it did not have insurance.  The owner of the towing company directly
contradicted appellant's contention by testifying that he [the company?] carried liability insurance.  
Appellant's only evidence to contradict the owner's testimony was his own testimony of the phone call.  

The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their
testimony.  City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).  The trier of fact may choose to
believe one witness and disbelieve another and this court cannot impose its own opinion to the contrary.  
Id.  Therefore, the trial court did not err in choosing to believe the towing company's owner on the issue of
insurance.  Appellant's third issue is overruled.

Impound and Notification Fees

In his sixth and seventh issues, appellant argues that the storage facility improperly charged him a $20.00
impound fee and a $50.00 notification fee.  Appellant failed to preserve these issues for review by raising
them in the trial court.  See Tex. R. App. P. 33.1.  Appellant's sixth and seventh issues are overruled.

In his ninth issue, appellant contends the trial court improperly turned down his motion for judgment as a
matter of law.  Appellant fails to cite any legal authority or provide substantive analysis of this issue.  
Therefore, he waived this complaint.  See Martinez v. El Paso County, 218 S.W.3d 841, 844 (Tex. App.-El
Paso 2007, pet. stricken); Tex. R. App. P. 38.1(h).  Appellant's ninth issue is overruled.

The judgment of the trial court is affirmed.

PER CURIAM

Panel consists of Justices Yates, Frost, and Brown.

[1]  Appellant originally filed his requests pursuant to Chapter 685 of the Texas Transportation Code, but the relevant
provisions have been renumbered as sections 2308.451-.460 in the Texas Occupations Code.  See Tex. Occ. Code Ann. §§  
2308.451-.460 (Vernon Supp. 2008).  Accordingly, we will refer to the relevant sections of the Occupations Code throughout
this opinion.

[2]  The Attorney General issued an opinion in which he determined that when a nonconsent tow hearing is conducted before
a magistrate of a municipal court or municipal court of record, the magistrate's determination is final, and there is no appeal.  
Tex. Att'y Gen. Op. No. GA-0316 (2005).  Appeals from municipal courts are prescribed by the Legislature.  Because the
Legislature provided no right to appeal from a municipal court's determination of probable cause in a nonconsent tow
hearing, the municipal judge's determination is final.  In this case, however, appellant requested a hearing in justice court.  
Jurisdiction over appeals from justice court is controlled by the Rules of Civil Procedure, which permit appeal to the county
court.  See Tex. R. Civ. P. 574b.