North Texas Tollway Authority Lawsuits Are They Being Filed Properly?

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 We have recently been hired on a few lawsuits that have been filed by attorneys in Dallas in relation to outstanding tollway violations located in Denton County.  The toll violations owed are alleged to be around $6,000.00.  However, with administrative fees, the price has skyrocketed to an unreasonable amount.  The alleged amount owed after all administrative fees is over $80,000.00  In most cases our office has defended in the past, we have seen these filed in county court as common law causes of action.  All of the cases we have defended have settled prior to suit being filed because they were losers from the beginning.  For more information on why the lawsuits in those cases were defective click here.

The basic premise of common law is that it is based in equity.  Equitable claims must be…  Well, equitable!  The problem with the North Texas Tollway Authority is that they are anything but equitable.  Any other company that would try to charge you $80,000.00 on a $6,000.00 debt would be laughed out of court.  The problem with the NTTA is that they have legislated a lot of these crazy administrative fees into the Transportation Code.  Shame on the legislature for allowing this to happen.  But what do you really expect from a politician that is more concerned with keeping their seat than protecting those that actually need their help?

Equitable claims that we normally see do not rely on these statutes to allege the debt owed because the statutes do not refer to separate causes of action outside of filing tickets with a justice of the peace court to try to resolve the matter.  Once the claim is based in equity, we can then challenge the reasonableness of the fees, whether or not there was an agreement for payment, etc.  This puts a defendant on high ground and the NTTA is left trying to convince a jury that they aren’t the most greedy bastards a person has ever seen.

Lately however, they have been filing these types of lawsuits in a different way.  We have seen them rely on The Transportation Code Section 366.178 to justify the debt and the administrative fees and then turn around and file a common-law cause of action referred to as “action of debt.”  The elements to prove for the action of debt are simple.  First, the debt has to be indisputable.  Second, it has to be owed.  Third, it must remain unpaid.  The reason why they want to use 366.178 is that it sounds as if the debt would be indisputable per the language of the statute.  So the argument we had with Plaintiff’s attorney went something like this:

Big Wig Attorney:  “How do you possibly expect to win this?  You have no defense.”

Us:  “Enlighten us on how smart you are, please?  How do you expect to get around the fact that demanding $80,000.00 on a $6,000.00 is indisputable?”

Big Wig Attorney:  “The Transportation Code says it is.  Can’t you read?”

Us:  “Ahhhh…  My apologies.  You must be the smartest guy in town.  Thanks for enlightening us to the error of our ways.”

The problem with the conversation is that we actually can read.  The statute itself is listed below and states the following:

Sec. 366.178. FAILURE OR REFUSAL TO PAY TOLL. (a) A motor vehicle other than an authorized emergency vehicle, as defined by Section 541.201, that passes through a toll assessment facility, whether driven or towed, shall pay the proper toll. The exemption from payment of a toll for an authorized emergency vehicle applies regardless of whether the vehicle is:

(1) responding to an emergency;

(2) displaying a flashing light; or

(3) marked as police or emergency vehicle.

(b) A person who fails or refuses to pay a toll provided for the use of a project is liable for a fine not to exceed $250, plus any administrative fees incurred in connection with the violation.

(b-1) As an alternative to requiring payment of a toll at the time a vehicle is driven or towed through a toll assessment facility, the authority shall use video recordings, photography, electronic data, transponders, or other tolling methods to permit the registered owner of the nonpaying vehicle to pay the toll at a later date.

(b-2) If the authority does not collect the proper toll at the time a vehicle is driven or towed through a toll assessment facility, the authority shall send an invoice by first-class mail to the registered owner of the vehicle. The invoice may include one or more tolls assessed by the authority for use of the project by the nonpaying vehicle and must specify the date by which the toll or tolls must be paid. Except as provided by Subsection (b-3), the registered owner shall pay the unpaid tolls included in the invoice not later than the 30th day after the date the invoice is mailed.

(b-3) If the address to which the invoice issued under Subsection (b-2) is mailed to the registered owner is determined to be incorrect, the registered owner shall pay the invoice not later than the 30th day after the date the invoice is mailed to the correct address.

(b-4) If the registered owner of the nonpaying vehicle fails to pay the unpaid tolls included in the invoice mailed under Subsection (b-2) or (b-3) by the date specified in the invoice, the authority shall send the first notice of nonpayment by first class mail to the registered owner of the nonpaying vehicle as provided by Subsection (d).

(c) On issuance of the first notice of nonpayment, the registered owner of the nonpaying vehicle shall pay both the unpaid tolls included in the invoice and an administrative fee. The authority may charge only one administrative fee of not more than $25 for the first notice of nonpayment that is sent to the registered owner of the nonpaying vehicle.

(d) Unless an authority requires additional time to send a notice of nonpayment because of events outside the authority’s reasonable control, the authority shall send the first notice of nonpayment not later than the 30th day after the date the 30-day period expires for the registered owner to pay the invoice issued under Subsection (b-2) or (b-3). If an authority requires additional time as provided by this subsection, the authority must send the notice not later than the 60th day after the date the 30-day period expires for the registered owner to pay the invoice issued under Subsection (b-2) or (b-3). The first notice of nonpayment shall require payment of the unpaid tolls included in the invoice and the administrative fee before the 30th day after the date the first notice of nonpayment is mailed.

(d-1) If the registered owner of the nonpaying vehicle fails to pay the unpaid tolls and the administrative fee by the date specified in the first notice of nonpayment, the authority shall send a second notice of nonpayment by first-class mail to the registered owner of the nonpaying vehicle. The second notice of nonpayment must specify the date by which payment must be made and may require payment of:

(1) the unpaid tolls and administrative fee included in the first notice of nonpayment; and

(2) an additional administrative fee of not more than $25 for each unpaid toll included in the notice, not to exceed a total of $200.

(d-2) If the registered owner of the nonpaying vehicle fails to pay the amount included in the second notice of nonpayment by the date specified in that notice, the authority shall send a third notice of nonpayment by first-class mail to the registered owner of the nonpaying vehicle. The third notice of nonpayment must specify the date by which payment must be made and may require payment of:

(1) the amount included in the second notice of nonpayment; and

(2) any third-party collection service fees incurred by the authority.

(e) If the registered owner of the vehicle fails to pay the amount included in the third notice of nonpayment by the date specified in the notice, the owner may be cited as for other traffic violations as provided by law, and the owner shall pay a fine of not more than $250 for each nonpayment of a toll.

(f) Except as provided by Subsection (f-1), in the prosecution of a violation for nonpayment, proof that the vehicle passed through a toll assessment facility and that the amount included in the third notice of nonpayment was not paid before the date specified in the notice, together with proof that the defendant was the registered owner or the driver of the vehicle when the unpaid toll was assessed, establishes the nonpayment of the registered owner. The proof may be by the testimony of a peace officer or authority employee, video surveillance, or any other reasonable evidence, including a copy of the rental, lease, or other contract document or the electronic data provided to the authority under Subsection (i) that shows the defendant was the lessee of the vehicle when the unpaid toll was assessed.

(f-1) Nonpayment by the registered owner of the vehicle may be established by:

(1) a copy of a written agreement between the authority and the registered owner for the payment of unpaid tolls and administrative fees; and

(2) evidence that the registered owner is in default under the agreement.

(g) The court of the local jurisdiction in which the unpaid toll was assessed may assess and collect the fine in addition to any court costs. The court shall collect the unpaid tolls, administrative fees, and third-party collection service fees incurred by the authority on or before the date the fines and court costs are collected by the court and forward the tolls and fees to the authority. Payment of the unpaid tolls, administrative fees, and third-party collection service fees by the registered owner may not be waived by the court unless the court finds that the registered owner of the vehicle is indigent.

(h) It is a defense to nonpayment under this section that the motor vehicle in question was stolen before the failure to pay the proper toll occurred and was not recovered by the time of the failure to pay, but only if the theft was reported to the appropriate law enforcement authority before the earlier of:

(1) the occurrence of the failure to pay; or

(2) eight hours after the discovery of the theft.

(i) A registered owner who is the lessor of a vehicle for which an invoice is mailed under Subsection (b-2) or (b-3) is not liable if, not later than the 30th day after the date the invoice is mailed, the registered owner provides to the authority:

(1) a copy of the rental, lease, or other contract document covering the vehicle on the date the unpaid toll was assessed, with the name and address of the lessee clearly legible; or

(2) electronic data, other than a photocopy or scan of a rental or lease contract, that contains the information required under Sections 521.460(c)(1), (2), and (3) covering the vehicle on the date the unpaid toll was assessed under this section.

(i-1) If the lessor timely provides the required information under Subsection (i), the lessee of the vehicle on the date the unpaid toll was assessed is considered to be the registered owner of the vehicle for purposes of this section, and the authority shall follow the procedures provided by this section as if the lessee were the registered owner of the vehicle, including sending an invoice to the lessee by first-class mail not later than the 30th day after the date of the receipt of the information from the lessor.

(j) In addition to the other powers and duties provided by this chapter, an authority has the same powers and duties as the department under Chapter 228, a county under Chapter 284, and a regional mobility authority under Chapter 370, regarding the authority’s toll collection and enforcement powers for:

(1) the authority’s turnpike projects; and

(2) other toll projects developed, financed, constructed, or operated under an agreement, including a comprehensive development agreement, with the authority.

Understanding Section 366.178 Of The Transportation Code

After reading this article anyone would think they are pretty much screwed.  That is exactly what the big wig attorney thinks for sure.  However, this is not really the case.  The problem that the NTTA is having is that justice of the peace judges cannot actually collect the crazy administrative fees that are alleged to be owed.  How are you going to collect $80,000.00 from someone that doesn’t have the money?  What judges have decided to as an alternative is to collect one administrative fee and let the rest go.

The other problem is that this code section does not carve out a separate cause of action for civil lawsuits.  Specifically, the section specifically refers to all cases alleged to be owed under 366.178 to be filed injustice of the peace courts.  After all, can a civil court hold a person responsible for fines?  Of course not.  That is the job of criminal courts.  Civil courts don’t have jurisdiction over criminal matters, do they?  They sure don’t.

If a cause of action is based in common law that means that there is not a statute on point to refer to in order to give the court guidance.  If a statute is on point, then it must be used.  These lawyers are basically referring to section (a) of 366.178 and asking the court to ignore the remainder of the statute.  If the statute is read as a whole, then there is no way to really remedy the problem other than to drop the 366.178 allegations to establish that the debt is indisputable.  Once this happens, then the action of debt cause of action is no longer available.

What does this mean in regular speak?  It means that they have to drop their lawsuit or change their petition to allege another common law cause of action.  All other common law causes of action are based on equity.  This means that the defendant has some pretty strong defenses.  After all, what does equity try to produce in a court of law?  Does it try to produce a fair result?  Is it fair that a person can be charged $80,000.00 for a debt that is actually $6,000.00?  Hell no!

If you have been sued in civil court where an attorney is trying to manipulate the statute in this way to try not to have to argue the reasonableness of the debt, then give our tollway defense attorneys a call.  We can look at the lawsuit and give you an honest answer to what you are up against.