Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-50462
_____________________
BRENDA L STUCKY, doing business as Bill's Wrecker Service;
RICHARD VILLANEVA, doing business as Creswells 24 Hour Wrecker
Service
Plaintiffs - Counter Defendants - Appellants
v.
CITY OF SAN ANTONIO;
Defendant - Counter Plaintiff - Appellee
TEXAS TOWING CORPORATION
Intervenor Defendant - Counter Plaintiff -
Appellee
________________________________________________________________
Appeal from the United States District Court for the
Western District of Texas, San Antonio
_________________________________________________________________
September 14, 2001
ON PETITIONS FOR REHEARING AND REHEARING EN BANC
(Opinion 7/30/01, 5th Cir., 2001 WL 863500)
Before KING, Chief Judge, and REAVLEY and JONES, Circuit Judges.
PER CURIAM:
The Petition for Rehearing is DENIED and no member of this
panel nor judge in regular active service on the court having
requested that the court be polled on Rehearing En Banc (Fed. R.
App. P. and 5th Cir. R. 35), the Petitions for Rehearing En Banc are
also DENIED.

In its Petition for Rehearing En Banc the City of San Antonio
brings to our attention a recent amendment by the Texas legislature
of definitions of "consent" and "non-consent" tows. See TEX.
TRANS[P]. CODE § 643.201(e), as amended effective Sept. 1, 2001.
The City contends that based on those subsequent amendments, the
court must now reconsider its rejection of the City's prior
argument (outlined in footnote 11 of our opinion) that accident
tows at which a police or municipal officer is present with some
authority over the scene constitute "non-consent tows". The City
claims that because its prior argument is newly reflected in the
amended statutory definitions, the court is bound to rely on the
new statute and thus to change its ruling rejecting that argument.
A careful reading of the reasons set out in footnote 11 and
of our analysis of the inapplicability of the municipal proprietor
exception makes clear that our ruling regarding what constitutes
"consent" and "non-consent" tows for the purposes of the municipal
proprietor exception was based on an in-depth substantive analysis
of the actual workings of accident tows in San Antonio and of the
effect of the City's Ordinances on that market. See Stucky, 2001 WL
863500, at *6-11, *19 n.11. Moreover, within footnote 11 itself,
the court cautioned the City that it could not simply avoid
preemption with mere semantics regarding "consent" and "non-
consent" tows. We reiterated the district court's admonishment of
the same argument: "`[The City] cannot, by sleight of hand (or
2

language), simply eliminate the concerns addressed by the inquiry
regarding whether a tow is consensual or nonconsensual .... It
cannot be the case that simply redefining what a consent tow is
eliminates that concern.' ... [The City's] argument is
unpersuasive." Id. The new statutory definitions add nothing to
the City's failed argument that the mere presence of a city officer
makes for a non-consent tow.
The mandate shall issue forthwith.
3