Opinion
NO. 14-15-00311-CV
12-06-2016
H & H WRECKER, Appellant v. CRYSTAL KOCTAR AND BRAZORIA AUTO & RECOVERY, Appellee
On Appeal from the County Court at Law No. 1 Jefferson County, Texas
Trial Court Cause No. 124195
SUPPLEMENTAL MEMORANDUM OPINION ON REHEARING
In its motion for rehearing, appellant H & H Wrecker argues for the first time that we should reverse the judgments of the justice and county courts and dismiss this case for lack of subject-matter jurisdiction. H & H contends that (1) the justice court lacked subject-matter jurisdiction over the appellee lienholders' request for a tow hearing because the owner gave consent for the truck to be towed and the lienholders raised issues outside the proper scope of such a hearing, and (2) the county court lacked jurisdiction over the lienholders' claim for statutory damages against H & H for violating the Texas Towing and Booting Act (Chapter 2308 of the Occupations Code). We disagree.
Under the Act, "[t]he owner or operator of a vehicle that has been removed and placed in a vehicle storage facility or booted 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 or booting." Tex. Occ. Code Ann. § 2308.452 (West 2012). The Act defines the term "vehicle owner" to include a lienholder. Id. § 2308.002(15). Here, it is undisputed that although the owner requested the tow, the lienholders did not consent. Moreover, H & H did not treat the tow as consensual because it sought to collect storage charges from the lienholders under Chapter 2303, which does not apply to a consent tow. Id. § 2303.003. Therefore, the lienholders were entitled to seek a hearing under section 2308.452.
Such a hearing occurs in justice court, id. § 2308.453, and sections 2308.451 and 2308.458 define the scope of the hearing. H & H's argument that the lienholders raised issues outside that scope at the tow hearing is a challenge to the relief sought in the justice court on the merits, not a challenge that implicates the justice court's jurisdiction. See, e.g., Dubai Petrol. Co. v. Kazi, 12 S.W.3d 71, 76-77 (Tex. 2000) (explaining distinction between right of plaintiff to relief and jurisdiction of court to afford it). Moreover, H & H does not identify any action taken by the justice court that exceeded its authority under the statutes that define its jurisdiction. We therefore do not consider H & H's argument, which it raised for the first time on rehearing in this Court. See Tex. R. App. P. 33.1(a).
H & H also argues that the lienholders' filing of a petition in county court raising a claim for statutory damages did not confer jurisdiction because that claim exceeded the scope of the county court's appellate jurisdiction over the justice court's judgment. But the Act makes a towing company that intentionally, knowingly, or recklessly violates its provisions liable to the vehicle owner for a $1,000 statutory penalty, and a county court has original jurisdiction to hear a claim for such a penalty. See Tex. Occ. Code § 2308.404(c); Black Bull Towing, LLC v. Ybarra, No. 02-14-00227-CV, 2015 WL 3637933, at *1-3 (Tex. App.—Fort Worth June 11, 2015, pet. denied) (mem. op.). H & H's argument that the county court erred in trying matters involving its original and appellate jurisdiction together does not establish a defect in the county court's jurisdiction, and thus it too may not be raised for the first time on appeal. See Tex. R. App. P. 33.1(a); Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 439-40 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
For these reasons, we deny H & H's motion for rehearing.
/s/ J. Brett Busby
Justice Panel consists of Justices Christopher, McCally, and Busby.