In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-20-00088-CV
BRAZOS VALLEY ROADRUNNERS, LLC, Appellant
V.
RANDALL HARGROVE, Appellee
On Appeal from the County Court at Law No. 2
Brazos County, Texas
Trial Court No. 6125-B
Before Morriss, C.J., Burgess and Stevens, JJ.
Opinion by Justice Stevens
OPINION
Randall Hargrove parked his pickup truck in the Coyote Parking Lot (Lot) owned by
Dixie Chicken, Inc. Realizing that he did not have a five-dollar bill to pay the parking fee,
Hargrove “walked less than 200 feet to an adjacent outdoor market to exchange a larger bill . . .
[and] immediately returned to the metal [pay] box and deposited a five-dollar bill in the
appropriate slot.” Even so, Brazos Valley Roadrunners, LLC (Roadrunners), towed Hargrove’s
pickup truck, requiring him to pay $297.50 to retrieve his vehicle. Pursuant to the Texas Towing
and Booting Act (the Act), Hargrove sued Dixie Chicken and Roadrunners for removal of a
vehicle without probable cause. Hargrove filed a request for a tow hearing before the Justice of
the Peace Court (JP Court) and obtained a default judgment in his favor.
Dixie Chicken and Roadrunners appealed the JP Court’s decision to the County Court at
Law No. 2 of Brazos County, Texas (trial court), which also determined that Hargrove proved
his claim that Roadrunners and Dixie Chicken towed his vehicle without probable cause or the
proper signage required by the Act.1 See TEX. OCC. CODE ANN. § 2308.001.2 As a result, the
trial court entered judgment in favor of Hargrove, including $297.50 in actual damages, $48.46
for costs of court, and post-judgment interest at five percent. Roadrunners appeals.3
1
Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We follow the precedent of
the Tenth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
2
“Section 2308.459 of the code provides for an appeal from the justice court’s decision,” Badaiki v. Miller, No. 14-
17-00450-CV, 2019 WL 922289, at *3 (Tex. App.—Houston [14th Dist.] Feb. 26, 2019, no pet.) (mem. op.) (citing
TEX. OCC. CODE ANN. § 2308.459), and “[a]ppeals from justice courts are tried de novo in county court.” Id. (citing
TEX. R. CIV. P. 506.3).
3
Dixie Chicken is not a party to this appeal.
2
Because we conclude that legally and factually sufficient evidence supports the trial
court’s judgment, we affirm it.
I. The Act
This case is governed by the Act. Under the Act, “[t]he owner or operator of a vehicle
that has been removed and placed in a vehicle storage facility . . . is entitled to a hearing on
whether probable cause existed for the removal and placement . . . .” TEX. OCC. CODE ANN.
§ 2308.452. The hearing takes place in a JP Court, and if probable cause is not found, the towing
company or parking facility owner must “reimburse the owner or operator for the cost of the
removal and storage paid by the owner or operator.” TEX. OCC. CODE ANN. §§ 2308.451,
2308.453.
Also, Chapter 2308 contains requirements for proper signage. In relevant part, Section
2308.252 of the Act states:
(a) A parking facility owner may, without the consent of the owner or
operator of an unauthorized vehicle, cause the vehicle and any property on or in
the vehicle to be removed and stored at a vehicle storage facility at the vehicle
owner’s or operator’s expense if:
(1) 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;
(2) the owner or operator of the vehicle has received actual notice
from the parking facility owner that the vehicle will be towed at the
vehicle owner’s or operator’s expense if it is in or not removed from an
unauthorized space; [or]
(3) the parking facility owner gives notice to the owner or operator of
the vehicle under Subsection (b) . . . .
TEX. OCC. CODE ANN. § 2308.252(a). In relevant part, Subchapter G states,
3
(a) . . . [A]n unauthorized vehicle may not be towed under Section
2308.252(a)(1) . . . unless a sign prohibiting unauthorized vehicles on a parking
facility is:
(1) facing and conspicuously visible to the driver of a vehicle that
enters the facility;
(2) located:
(A) on the right or left side of each driveway or curb-cut
through which a vehicle can enter the facility, including an entry
from an alley abutting the facility; or
(B) at intervals along the entrance so that no entrance is farther
than 25 feet from a sign . . . .
....
(b) . . . [A]n unauthorized vehicle may be towed under Section 2308.252(a)(1)
. . . only if each sign prohibiting unauthorized vehicles:
....
(3) contains the international symbol for towing vehicles;
....
(5) bears the words, as applicable:
(A) “Unauthorized Vehicles Will Be Towed or Booted at
Owner’s or Operator’s Expense”; [or]
(B) “Unauthorized Vehicles Will Be Towed at Owner’s or
Operator’s Expense”;
....
(6) contains a statement of the days and hours of towing and booting
enforcement; and
4
(7) contains a number, including the area code, of a telephone that is
answered 24 hours a day to enable an owner or operator of a vehicle to
locate a towed vehicle . . . .
TEX. OCC. CODE ANN. § 2308.301. If a towing company or parking facility owner violates
Chapter 2308, the owner of the vehicle is entitled to recover damages arising from and fees
assessed in the vehicle’s removal or storage. TEX. OCC. CODE ANN. § 2308.404.
II. Factual and Procedural Background
At trial, Hargrove testified that he saw no signs before he parked in the Lot at
approximately 7:30 p.m. After parking, he walked to the portion of the Lot where he thought
patrons were supposed to pay and saw a “big sign” notifying patrons “to pay before leaving the
parking place.” The sign also said, “IF YOU PARK AND DON’T PAY[,] YOUR VEHICLE
WILL BE TOWED AT OWNER’S EXPENSE.” Another sign read, “GET YOUR CHANGE
BEFORE YOU PARK,” “PARK BEFORE YOU PAY,” “PAY BEFORE YOU WALK AWAY
OR YOU WILL BE TOWED,” but Hargrove testified that he did not see that sign.
Hargrove said that he only had $20.00 bills, the parking fee was $5.00, and the Lot had
no means of making change. Hargrove interpreted the “pay before leaving” sign that he saw to
mean that a person would be towed if they forgot to pay, thought the lot was free and did not
pay, or “walk[ed] away without paying.” After others in the lot said they had no change either,
Hargrove decided to get change nearby.
To stay within range of the Lot’s cameras, Hargrove walked “like 20 feet from the actual
parking place,” obtained change from a concession stand, and walked right back to the pay box
to deposit a five-dollar bill into the slot that corresponded to the number assigned to his parking
5
space. Hargrove testified that it only took “three minutes max” to go find change and return to
the Lot. Hargrove said, “I put [the money] in the slot, first looking up at the camera, and
showing the camera.” After paying, Hargrove confirmed that his truck was still in the parking
space and walked away.4
When he returned to the parking lot at about 8:35 p.m., his truck was not in the Lot.
Hargrove called the number on the sign and spoke to an employee who provided instructions on
how to retrieve the truck. Hargrove asked the employee to show him the video recording from
the Lot so he could prove to her that he had paid the parking fee. The employee was unable to
help Hargrove and told him that he could take up the matter with her employers. Left with no
choice, Hargrove paid the $297.50 fee and went home in his truck. The receipt was introduced
into evidence.
Hargrove called Roadrunners the next day to demand an explanation as to why he was
towed even after he had paid and said that the woman on the other end of the line “yelled,
curs[ed him], and then hung up.” Hargrove decided to call someone at Dixie Chicken, which
owned the Lot, and asked a manager for the camera footage. According to Hargrove, the
manager said that the cameras did not work and were just there to deter people from leaving the
Lot without paying. Hargrove called Dixie Chicken’s corporate office to get answers but
received none. Even so, still photos from the Lot’s cameras and video footage of Hargrove
before he returned to the Lot were produced by Roadrunners, which demonstrated that the Lot’s
cameras were working.
4
Hargrove confirmed that, before he left the Lot, there was not a slip of paper on his truck warning that he would be
towed.
6
Hargrove said that the signs in the Lot were “misleading and deceivious [sic].” When
asked to explain why, Hargrove said, “Clearly, I parked and I paid. It doesn’t say if you walk off
the curb and get change, you’re subject to get towed.” He added that Roadrunners and Dixie
Chicken would have known he had only walked off the lot for a few minutes before returning to
pay if they were watching the cameras. Timestamps from the photographs of Hargrove in the
Lot confirmed that he had only taken approximately three minutes to get change and return to the
pay box.
Sandra Portzer, one of Roadrunners’ owners, testified that video recordings from the
Lot’s cameras were only saved for twelve days, that she set aside the recording of Hargrove, but
did not save any portion of the recording after Hargrove left the parking lot to make change
because she did not believe it was relevant. Portzer claimed that she was unaware that Hargrove
had disputed the tow until she received his request for a tow hearing.
Portzer acknowledged that, pursuant to its contract with Dixie Chicken, Roadrunners was
responsible for monitoring the Lot. Portzer claimed, “Because of the way that we are able to
monitor . . . the lot, we -- we cannot keep track of people once they leave the property to see if
they get change and come back” because “once they leave the lot, we’re through watching. We
need to watch the next car or the next person.” Portzer added that “many of [their] cameras are
overhead,” that it is “hard to recognize individuals,” and that, “when you are watching the pay
box to see who comes back, you can’t be watching the rest of the cameras,” but admitted that
they had “several different cameras for different angles.”
7
Portzer said that Dixie Chicken makes the rules for the Lot, that their contract with Dixie
Chicken allowed for towing “unauthorized vehicles,” but that the contract did not define that
term and, instead, “[left] it open with suggestions of what can be towed.” Portzer said that
Roadrunners had discretion not to tow someone if they saw the person had come back to the Lot
to pay the parking fee, but that it did not collect the parking fees and had no access to the pay
box, which belonged to Dixie Chicken. Portzer also said that the Lot did not provide any receipt
for payment.
As for the requirements for Subchapter G, Portzer admitted that the Lot’s signs did not
have the international symbol for towing and did not contain the phrase “unauthorized vehicles
will be towed or booted at the owner’s expenses.” Protzer also said that signs were not placed in
front of any parking spots and agreed that Roadrunners did not give notice to Hargrove before
towing.
The trial court entered the following findings of fact, among others:
• “Hargrove left the Coyote Lot for fewer than five minutes before returning, at which
point he paid five dollars into the payment receptacle at the Coyote Lot.”
• “Hargrove’s vehicle had not yet been towed when he paid.”
• “Neither defendant spoke to Hargrove or posted notice on his vehicle before his vehicle
was towed.”
• “Brazos Valley Roadrunners maintains surveillance of the Coyote Lot with multiple
surveillance cameras[, and] [a] viewer of those surveillance cameras should have seen
Hargrove return and make payment.”
• “Multiple signs solely containing the statement, ‘Get your change before you park[,] park
before you pay[,] pay before you walk away or you will be towed’ are posted near the
entrances to the Coyote Lot.”
8
• “One sign reading solely ‘Coyote Parking Lot,’ ‘Notice,’ ‘Place money in numbered slot
that matches your parking space or you will be towed[]’ and ‘Pay before you walk away’
is posted facing into the Coyote Lot where it cannot be viewed from the street or the
entrances.”
• “None of the aforementioned signs contain the international symbol for towing vehicles.”
• “None of the aforementioned signs bear the words ‘Unauthorized Vehicles Will be
Towed at Owner’s or Operator’s Expense,’ or any variation of those words.”
• “None of the aforementioned signs contains a statement of the days and hours of towing
and booting enforcement”; “None of the aforementioned signs contains a telephone
number to enable an owner or operator of a vehicle to locate a towed vehicle.”
• “Authorized use of the Coyote Lot . . . was conditioned solely on reasonably prompt
payment of $5,” and
• “Hargrove’s use of the Coyote Lot . . . was authorized because he completed reasonably
prompt payment of $5.”
As a result of its findings, the trial court concluded that the Lot’s signs did not comply with
Subchapter G of the Act and that Roadrunners lacked probable cause to tow Hargrove’s vehicle
because the Lot lacked proper signage and “they should have known that Hargrove’s vehicle was
not unauthorized.”
In its motion for new trial, Roadrunners argued that the trial court’s findings were not
supported by legally or factually sufficient evidence because signs warned patrons of the Lot to
get change before parking and to “pay before [they walked] away.” The trial court denied the
motion for new trial. On appeal, Roadrunners argues that the trial court’s findings were not
supported by legally and factually sufficient evidence.
9
III. Standard of Review
Because the trial court issued findings of fact and conclusions of law in this case after a
bench trial, “the trial court’s findings of fact are reviewable for legal and factual sufficiency of
the evidence by the same standards as applied in reviewing the legal and factual sufficiency of
the evidence supporting a jury’s finding.” Davidson v. McLennan Cty. Appraisal Dist., No. 10-
11-00061-CV, 2012 WL 3799149, at *2 (Tex. App.—Waco Aug. 30, 2012, pet. denied) (mem.
op.) (citing Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991)). “We review
the trial court’s conclusions of law de novo.” Id. (citing BMC Software Belgium, N.V. v.
Marchand, 83 S.W.3d 789, 794 (Tex. 2002)). “As the reviewing court, we may review the trial
court’s legal conclusions drawn from the facts to determine their correctness.” Id. (citing
Marchand, 83 S.W.3d at 794). “In reviewing a finding for legal sufficiency, we credit evidence
that supports the finding if reasonable jurors could, and disregard contrary evidence unless
reasonable jurors could not.” Id. (citing Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793
(Tex. 2006); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). “In reviewing a factual
sufficiency issue, the court of appeals must weigh all of the evidence in the record.” Id. (citing
Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam)). “Findings may be overturned
only if they are so against the great weight and preponderance of the evidence as to be clearly
wrong and unjust.” Id. (citing Ortiz, 917 S.W.2d at 772).
IV. Analysis
Roadrunners argues that it had probable cause to tow because Hargrove left the Lot for a
few minutes before returning to pay and the Lot’s rules clearly required a person to pay before
10
walking away from the Lot.5 The evidence at trial showed that Hargrove left the Lot for less
than five minutes to retrieve cash to pay the parking fee. Even assuming Hargrove’s brief
departure led to his vehicle becoming temporarily unauthorized, Chapter 2308 only permits the
towing of an unauthorized vehicle, and it is undisputed that Hargrove returned and quickly paid
the fee before finally leaving the Lot.6 As a result, sufficient evidence supported the trial court’s
findings that “[a]uthorized use of the Coyote Lot . . . was conditioned solely on reasonably
prompt payment of $5,” and “Hargrove’s use of the Coyote Lot . . . was authorized because he
completed reasonably prompt payment of $5.” Even though Hargrove’s truck was authorized to
park in the Lot after payment, Roadrunners still towed it.7 Based on the evidence in this case, we
conclude that the trial court’s finding that Roadrunners lacked probable cause to tow was not so
against the great weight and preponderance of the evidence as to be clearly wrong and unjust.
As a result, legally and factually sufficient evidence supported this finding.
Also, Hargrove’s vehicle was subject to towing without consent only if (1) the Lot had
signs that complied with Subchapter G, (2) Hargrove received actual notice from Dixie Chicken
5
The term “probable cause” is not defined under Chapter 2308.305. In the context of a tow conducted by a police
officer, courts have applied the criminal definition of probable cause. See Wilt v. City of Greenville Police Dep’t,
No. 06-10-00107-CV, 2011 WL 1600509, at *1 (Tex. App.—Texarkana Apr. 29, 2011, no pet.) (mem. op.); Senter
v. City of Dallas, No. 05-05-01416-CV, 2006 WL 3218548, at *2 (Tex. App.—Dallas Nov. 8, 2006, no pet.) (mem.
op.). Even assuming, without deciding, that the criminal definition of probable cause applied, probable cause must
exist “at the moment the arrest is made,” and Roadrunners has provided us with no authority that rebuts the position
that there must be probable cause at the time of the tow. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App.
2009). Here, it was undisputed that Hargrove paid the fee before the tow, and the trial court ruled, based on the
evidence that Roadrunners had employees watching the surveillance recording, that Roadrunners should have seen
Hargrove make that payment.
6
We limit our holding to the facts of this case and express no opinion on whether a towing company or parking
facility owner would have probable cause to tow if a longer time elapsed between parking and payment.
7
As the fact-finder, the trial court was free to disbelieve Portzer’s testimony that Roadrunners could not monitor the
Lot after someone left the property because the surveillance cameras were working, photos introduced into evidence
showed that a person could be easily identified, and there was evidence that a paid employee monitored the footage.
11
that the vehicle would be towed at the vehicle owner’s or operator’s expense if it was “in or not
removed from an unauthorized space,” or (3) Dixie Chicken gave notice to the owner or operator
of the vehicle under Section 2308.252(b). TEX. OCC. CODE ANN. §§ 2308.252, 2308.301.
Roadrunners argues that Hargrove received actual notice under Section 2308.252(a)(2) due to the
signs posted in the Lot warning him to pay before walking away. Despite the Lot’s warning,
there is a difference in the Act between an unauthorized vehicle parked in an authorized space
and a vehicle parked in an unauthorized space, such as one in which no parking is allowed or
parking is reserved for a specified group. Because the evidence did not show that Hargrove was
parked in an unauthorized space, and the evidence supported the trial court’s finding that
“[n]either defendant spoke to Hargrove or posted notice on his vehicle before his vehicle was
towed,” nothing showed that he received actual knowledge as required by Section
2308.252(a)(2).
Roadrunners also argues that the sign met the requirements of providing notice under
Section 2308.252(b). However, the relevant portions of that Section plainly read,
(b) A parking facility owner is considered to have given notice under
Subsection (a)(3) if:
(1) a conspicuous notice has been attached to the vehicle’s front
windshield or, if the vehicle has no front windshield, to a conspicuous part
of the vehicle stating:
(A) that the vehicle is in a parking space in which the vehicle is
not authorized to be parked;
(B) a description of all other unauthorized areas in the parking
facility;
12
(C) that the vehicle will be towed at the expense of the owner
or operator of the vehicle if it remains in an unauthorized area of
the parking facility; and
(D) a telephone number that is answered 24 hours a day to
enable the owner or operator of the vehicle to locate the
vehicle . . . .
TEX. OCC. CODE ANN. § 2308.252(b)(1). Because the evidence at trial established that Hargrove
did not receive the notice described by subsection (b)(1) of Section 2308.252, he did not receive
notice under subsection (a)(3).
As a result, Roadrunners was required to show that the Lot’s signs complied with
Subchapter G. Section 2308.301(a) described where the signs must be posted, and Section
2308.301(b) states that an unauthorized vehicle can be towed “only if each sign prohibiting
unauthorized vehicles” contains required information, including the international symbol for
towing, a statement that unauthorized vehicles will be towed at the owner’s expense, the days
and hours of towing enforcement, and a telephone number enabling a vehicle owner or operator
to locate a towed vehicle at any time of the day. TEX. OCC. CODE ANN. § 2308.301(b) (emphasis
added). The trial court found that the signs on the Lot did not comply because, among other
things, (1) the information required by Section 2308.301(b) was not contained on each sign, and
(2) none of the signs contained the international symbol for towing—a fact that Portzer
admitted—or stated the days and hours of towing enforcement.8
8
Roadrunners’ brief fails to address the international symbol for towing or the days and hours of towing
enforcement, and instead states in a conclusory manner that its signs complied with Subchapter G. Roadrunners also
mistakenly argues that Section 2308.305, titled “Individual Parking Restrictions in Restricted Area,” blesses the
noncompliance with Section 2308.301. See TEX. OCC. CODE ANN. § 2308.305. Section 2308.305 does not apply
because nothing shows that the Lot had spaces within it that were subject to different restrictions or that any
particular space was “reserved for a particular unit number, person, or type of person.” TEX. OCC. CODE ANN.
13
We conclude that legally and factually sufficient evidence supported the trial court’s
conclusion that Roadrunners did not comply with Subchapter G of the Act. As a result,
Roadrunners was not authorized to tow Hargrove’s vehicle under the Act.9
V. Conclusion
We affirm the trial court’s judgment.
Scott E. Stevens
Justice
Date Submitted: March 31, 2021
Date Decided: April 23, 2021
§ 2308.305(c). Even so, Section 2308.305 allows for additional signage “impos[ing] further specific parking
restrictions in an area to which the signs apply for individual spaces” only when the “parking facility owner . . .
complies with Sections 2308.301 and 2308.302.” TEX. OCC. CODE ANN. § 2308.305(a).
9
Because our resolution of the issues in this opinion is dispositive, we need not address Roadrunners’ additional
challenges to the trial court’s findings of fact and conclusions of law.
14