Texas Towing Rotation Lists: A Legal Analysis of 10 Lawsuits

I. Introduction

The relationship between governmental entities and private towing services is often governed by a system of rotation lists, where approved towing companies are dispatched for non-consensual tows, such as those arising from accidents or violations. When a towing company is removed from such a list, it frequently leads to litigation, primarily against the governmental entity or its officials. These disputes often involve complex questions of constitutional law, statutory interpretation, and common law principles. This report synthesizes recent judicial decisions to identify common claims, assess their viability, and highlight discernible trends.

II. Common Claims and Their Success Rates

Towing companies typically assert a range of claims when removed from rotation lists, with varying degrees of success. The most prevalent claims include:

A. Due Process Claims (Property and Liberty Interests)

A recurring theme in this litigation is the assertion that removal from a rotation list deprives a towing company of a constitutionally protected property or liberty interest without due process of law, in violation of the Fourteenth Amendment. Generally, courts have been reluctant to recognize a property interest in remaining on a governmental towing rotation list, making these claims difficult for plaintiffs to win.

1.     Property Interest: For a property interest to exist, a plaintiff must demonstrate a "legitimate claim of entitlement" to the benefit, not merely a unilateral expectation. Wimer v. Holzapfel, 868 F. Supp. 844, 850 (E.D. Tex. 1994). This entitlement must stem from an independent source, such as state law, a statute, or an express or implied contract.

Lack of Entitlement: Courts consistently hold that city ordinances or governmental practices that do not contain mandatory language specifying eligibility or removal criteria do not create a due process property interest. For instance, in Chavers v. Morrow, the Fifth Circuit affirmed the denial of a preliminary injunction, finding that city ordinances requiring police departments to maintain tow rotation lists did not create a process-protected property interest because they lacked mandatory language regarding eligibility or removal and did not explicitly provide exclusive means for removal. Chavers v. Morrow, 354 F. App'x 938, 941 (5th Cir. 2009). Similarly, Blackburn v. City of Marshall found that a towing company failed to allege a property interest in remaining on a city's and county's rotating on-call list, emphasizing that an interest terminable at the whim of another person is not a protected property right. Blackburn v. City of Marshall, 42 F.3d 925, 941 (5th Cir. 1995). The court noted that a unilateral expectation is insufficient for a property interest. Id. Wimer v. Holzapfel also concluded that the owner of a service station removed from a county's rotational list was not deprived of a property or liberty interest, stating that there was no "legitimate claim of entitlement" to the list. Wimer, 868 F. Supp. at 850.

Contractual Basis: In cases where a formal contract exists, the claims may shift. Amaro v. Wilson County involved a declaratory action by towing businesses challenging a county's agreement with another towing service for incident management tows. Amaro v. Wilson County, 398 S.W.3d 780, 783 (Tex. App.—San Antonio 2011, no pet.). The court found that the county was authorized to enter such a contract, affirming the trial court's take-nothing judgment against the plaintiffs. Id. at 785–86. This suggests that clear contractual arrangements, when properly authorized, can withstand challenges from excluded competitors.

Success Rate: Due process claims based on a property interest in a rotation list have a low success rate where the governmental scheme does not create a clear, mandatory entitlement. Courts generally defer to the discretion of governmental entities in managing such lists, particularly in the absence of explicit statutory or contractual provisions granting a vested right.

2.     Liberty Interest (Stigmatization): A liberty interest claim typically arises when governmental action imposes a stigma or damages reputation, thereby foreclosing future employment opportunities.

In Blackburn, the plaintiff also asserted a due process claim based on stigmatization and damage to reputation. Blackburn, 42 F.3d at 936. However, the court found that the alleged statements did not accuse the plaintiff of wrongdoing and were not stigmatizing, thus failing to meet the "stigma-plus-infringement" test. Id. at 937.

Success Rate: Claims based on a liberty interest derived from stigmatization are also rarely successful in this context, as courts require specific, damaging statements that go beyond mere business disagreement and directly impact future livelihood.

B. First Amendment Claims (Free Speech)

Towing companies sometimes allege that their removal from a rotation list was in retaliation for exercising their First Amendment rights, such as complaining about governmental bidding procedures or official conduct.

In Blackburn v. City of Marshall, the plaintiff, after complaining about bidding procedures for a city towing contract, had his permission to use a police radio frequency revoked. Blackburn, 42 F.3d at 928. The Fifth Circuit held that the plaintiff stated First Amendment claims against the city and chief of police, reversing the district court's dismissal on this ground. Id. at 934–35. The court clarified that even though the plaintiff was not a public employee, his free speech claim should be analyzed under a "more First Amendment friendly standard" applicable to private citizens. Id. at 931. This indicates a potential avenue for success if a plaintiff can clearly demonstrate retaliatory action for protected speech.

Conversely, Wimer v. Holzapfel found that the sheriff did not violate the towing company owner's First Amendment rights when removing him from the rotational list. Wimer, 868 F. Supp. at 850–51. The success often hinges on whether the speech relates to a matter of public concern and if the retaliatory action is a direct result of that speech.

Success Rate: These claims have a mixed success rate. While Blackburn offered a glimmer of hope for plaintiffs, demonstrating that such claims can survive early dismissal, Wimer illustrates that they are far from guaranteed victories. Success depends heavily on establishing a clear causal link between protected speech and adverse government action.

C. Antitrust Claims (Sherman Act)

Towing companies occasionally bring antitrust claims, typically alleging attempts to monopolize the towing market in violation of the Sherman Antitrust Act.

In Wimer v. Holzapfel, the towing company alleged a Sherman Act violation. Wimer, 868 F. Supp. at 848. However, the court granted summary judgment for the defendants, finding no conspiracy in violation of the Sherman Act and noting that it "stretches the imagination to the limits to believe that Hardin County was ever in danger of having its tower and wrecker industry monopolized by Sheriff Holzapfel." Id. at 849.

More recently, in A-Pro Towing and Recovery, LLC v. City of Port Isabel, the plaintiff alleged that a city commissioner used his official position to run A-Pro out of business for the benefit of tow companies operated by his relatives, claiming an attempt to monopolize the market in violation of the Sherman Antitrust Act. A-Pro Towing & Recovery, LLC v. City of Port Isabel, No. 1:19-CV-00016, 2020 WL 4794657, at *1 (S.D. Tex. Aug. 18, 2020). The court granted summary judgment for the defendant, dismissing all of A-Pro's antitrust claims. Id. at *9.

Success Rate: Antitrust claims against governmental entities in the towing context have a very low success rate. Courts appear to be highly skeptical of monopolization claims where the governmental entity is exercising its proprietary functions or where the market dynamics do not demonstrate a realistic threat of monopoly. The bar for proving intent to monopolize and the actual impact on competition is exceptionally high.

D. State Law Claims (e.g., Ultra Vires, Tortious Interference, Slander)

In addition to federal constitutional claims, towing companies often append state law claims.

1.     Ultra Vires Actions:

Amaro v. Wilson County saw towing companies allege that the county's agreement with a competitor was ultra vires (beyond its legal authority) and exceeded its constitutional and statutory powers. Amaro, 398 S.W.3d at 783. The Court of Appeals, however, affirmed the trial court's judgment, concluding that the county was authorized to enter the agreement for incident management tows. Id. at 785–86. This suggests that counties and cities generally have broad authority in contracting for towing services, provided they act within their statutory mandates.

Success Rate: Ultra vires claims generally have a low success rate if the governmental entity can demonstrate a statutory basis for its actions.

2.     Tortious Interference:

Ricky's Towing of Amarillo, LLC v. T-Miller Wrecker Services, Inc. involved a claim of tortious interference with prospective business relations. Ricky's Towing of Amarillo, LLC v. T-Miller Wrecker Servs., Inc., No. 07-20-00009-CV, 2021 WL 1011905, at *1 (Tex. App.—Amarillo Mar. 16, 2021, no pet.). While this case was between private towing companies, not a governmental entity, it highlights the viability of such claims in the towing industry. The court found that Ricky's Towing intentionally increased the chances that it or another company would be dispatched to calls that rightfully belonged to T-Miller, thereby interfering with T-Miller's prospective business relations. Id. at *4.

Success Rate: While not directly against a governmental entity, this case indicates that tortious interference claims can be successful in the towing industry when intentional, harmful conduct affecting business relations is proven. When directed at governmental actors, however, such claims often face immunity defenses.

3.     Slander/Defamation:

Elias v. Griffith involved a towing company owner suing city officials for alleged slanderous statements made in a report to the City Council. Elias v. Griffith, No. 01-17-00333-CV, 2018 WL 3233587, at *1 (Tex. App.—Houston [1st Dist.] July 3, 2018, no pet.). The trial court granted the officials' plea to the jurisdiction and dismissed the suit on grounds of absolute immunity and official immunity, which the appellate court affirmed. Id. at *3–4.

Success Rate: Claims against officials for slander or similar torts related to their official duties often face significant hurdles due to immunity doctrines, resulting in a low success rate.

III. Legal Trends and Considerations

Several key trends emerge from these cases:

Difficulty in Establishing Property Interests: The most consistent trend is the judiciary's reluctance to find a protected property interest in a towing company's inclusion on a rotation list. This is a significant barrier for many due process claims, as governmental entities often maintain discretion in managing these lists. Absent explicit statutory or contractual language creating an entitlement, courts view participation as a privilege, not a right.

Governmental Immunity: Governmental entities and their officials frequently benefit from various forms of immunity (e.g., sovereign immunity, official immunity, qualified immunity). These immunities provide robust defenses against state law tort claims and often against federal civil rights claims unless a clear constitutional violation or exception to immunity is demonstrated. For example, Elias v. Griffith directly illustrates the effectiveness of immunity defenses against slander claims. Elias, 2018 WL 3233587, at *3–4. Wimer v. Holzapfel also found the sheriff entitled to qualified immunity. Wimer, 868 F. Supp. at 851–52.

Proprietary vs. Regulatory Functions: The distinction between a city's proprietary and regulatory functions can be critical. In Cardinal Towing & Auto Repair, Inc. v. City of Bedford, Tex., the Fifth Circuit held that the city's action of contracting for nonconsensual towing services was a "narrowly focused exercise of proprietary function," not a regulatory one. Cardinal Towing & Auto Repair, Inc. v. City of Bedford, Tex., 180 F.3d 686, 691 (5th Cir. 1999). This distinction was crucial in determining that the city's action was not preempted by federal law. Id. This suggests that courts afford more latitude to governmental entities acting in a proprietary capacity (e.g., procuring services) than in a purely regulatory one.

Judicial Deference to Governmental Discretion: Courts generally show deference to the administrative decisions of cities and counties regarding how they manage their towing services, especially when these decisions are tied to public safety concerns or efficient resource allocation. This deference is evident in the outcomes of due process and ultra vires claims, where courts often uphold the governmental entity's authority to establish and enforce rules for their towing programs. Fort Bend Cnty. Wrecker Ass'n v. Wright, 39 S.W.3d 421, 427–28 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

IV. Conclusion

The landscape of litigation for towing companies removed from governmental rotation lists is challenging. Claims rooted in due process, particularly those asserting a property interest in continued inclusion on a list, face an uphill battle due to courts' consistent refusal to recognize such an entitlement without explicit statutory or contractual guarantees. While First Amendment claims offer a potential avenue for redress, success hinges on demonstrating clear retaliatory action for protected speech. Antitrust and state law tort claims are typically unsuccessful due to the high burden of proof, governmental immunity, and judicial deference to governmental entities' proprietary functions and administrative discretion.

Attorneys representing towing companies should focus on identifying specific statutory or contractual provisions that might create a legitimate entitlement to remaining on a list, or robust evidence of retaliatory conduct for protected speech. Conversely, governmental entities can bolster their defenses by ensuring their ordinances and practices clearly define the discretionary nature of their towing rotation lists and by maintaining proper documentation of their decision-making processes.

V. Cases Used for this Analysis

1. Chavers v. Morrow, 354 F. App'x 938 (5th Cir. 2009).

2. Cardinal Towing & Auto Repair, Inc. v. City of Bedford, Tex., 180 F.3d 686 (5th Cir. 1999).

3. Fort Bend County Wrecker Ass'n v. Wright, 39 S.W.3d 421 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

4. Amaro v. Wilson County, 398 S.W.3d 780 (Tex. App.—San Antonio 2011, no pet.).

5. Blackburn v. City of Marshall, 42 F.3d 925 (5th Cir. 1995).

6. Jones v. Clark, No. 14-22-00537-CV, 2023 WL 5556657 (Tex. App.—Houston [14th Dist.] Aug. 29, 2023, no pet.).

7. Elias v. Griffith, No. 01-17-00333-CV, 2018 WL 3233587 (Tex. App.—Houston [1st Dist.] July 3, 2018, no pet.).

8. Ricky's Towing of Amarillo, LLC v. T-Miller Wrecker Services, Inc., No. 07-20-00009-CV, 2021 WL 1011905 (Tex. App.—Amarillo Mar. 16, 2021, no pet.).

9. Wimer v. Holzapfel, 868 F. Supp. 844 (E.D. Tex. 1994).

10. A-Pro Towing and Recovery, LLC v. City of Port Isabel, No. 1:19-CV-00016, 2020 WL 4794657 (S.D. Tex. Aug. 18, 2020).