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Chapter 2308 of Title 14 of the Texas Occupations Code deals with towing and booting by towing companies.

Section 2308.404(a)(2) reads "A towing company, booting company, or parking facility owner who violates this chapter is liable to the owner or operator of the vehicle that is the subject of the violation for ... towing, storage, or booting fees in connection with the vehicle's removal, storage or booting of the vehicle ..."

But then 2308.404(b) reads "A vehicle's owner or operator is not required to prove negligence of a parking facility owner, towing company, or booting company to recover under Subsection (a)."

What does this mean? If, for example, the owner claims that the towing company failed to observe the requirement that a towing company not tow a vehicle from a facility that fails to display proper signage (2308.301), is the burden of proof on the towing company and not the owner?

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What does this mean?

It means that proof of a violation of the statute is sufficient even if it wouldn't support a common law claim for negligence.

If, for example, the owner claims that the towing company failed to observe the requirement that a towing company not tow a vehicle from a facility that fails to display proper signage (2308.301), is the burden of proof on the towing company and not the owner?

It does not shift the burden of proof. It changes what has to be proved. The owner can prove a violation of the statute rather than proving negligence. But the burden of proof remains on the owner.

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  • In short, the company has strict liability.
    – Mary
    Jul 4, 2023 at 1:27
  • @Mary . . . on claims for its fees for violations of the statutes (although some of the statutory violations may internally have an intent requirement). The statute is really distinguishing itself from common law bailment law more than it is stating the intent requirement for specific violations of its own violations that lead to a forfeiture of fees.
    – ohwilleke
    Jul 4, 2023 at 1:34
  • So if the towing company violates the statute in any way, then they are liable for the fees they originally charged the owner? There is a provision in the statute that states that the towing company may not tow the vehicle unless signs that meet a number of statutory requirements are present, including being made of weather-resistant material. So if a sign otherwise meets the statute, but is made of cardboard, the owner should be able to demand that the towing company refund what they charged the owner?
    – guero64
    Jul 4, 2023 at 12:21
  • @guero64 Probably so.
    – ohwilleke
    Jul 4, 2023 at 17:39
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    Thanks. I was able to get access to the case law and it turns out that a case was won won on the basis of the sign being 5 inches too low.
    – guero64
    Jul 7, 2023 at 19:25

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