September 11, 1990
Mr. Andrew Sansom Opinion No. JM-1219
Executive Director
Texas Parks and Wildlife Re: Authority of the Parks
Department and Wildlife Department to
4200 Smith School Road accept an affidavit in lieu
Austin, Texas 78744 of a certificate of title for
a boat (RQ-2043)
Dear Wr. Sansom:
your predecessor asked us to render an opinion about
issuance of a new certificate of title for a motorboat that
is already covered by a certificate of title when the
applicant cannot produce the existing certificate of title
endorsed by the transferor. Specifically, you ask whether
the Parks and Wildlife Department may issue a certificate of
- title based on an affidavit in which the applicant explains
the missing certificate of title.
The ownership of a motorboat, other than a new
motorboat, is evidenced by a certificate of title issued by
the department. Parks and Wildlife Code 5 31.045. A
purchaser of a motorboat must apply for a certificate of
title not later than 20 days after the sale. &J.
5 31.046(a). An application for a certificate of title mUSt
be accompanied by information showing ownership and evidence
establishing that the applicant is entitled to a certificate
of title. s. 5 31.047.
Section 31.053 of the Parks and Wildlife Code governs
the transfer of motorboats. Section 31.049(e) provides as
follows:
Title ~~ay be transferred
. . onlv bv surrender
of the oriainal certat== of title or ooerlv
aorsed to show the transfer or by evidence
of an involuntary transfer as defined in
Subdivision (5) of Subsection (a) of Section
31.053, as amended. (Emphasis added.)
See also Parks and Wildlife Code 5 31.053 (setting out
exclusive methods for transferring ownership of motorboats);
C Attorney General Opinion MW-458 (1982). In other words, if
p. 6445
Mr. Andrew Sansom - Page 2 (JM-1219)
the seller does not surrender the certificate of title to
the purchaser, no transfer has occurred, at least insofar as
the department is concerned. a &~,&RY v. RDY. Inc 760
S.W.2d 813 (Tex. Ct. App.- Corpus Christi 1988, no 'Grit).
Therefore, in such circumstances, the department has no
authority to issue a new certificate of title to the
purchaser. Attorney General Opinion MW-458 (1982).
We note that the department is required to make
regulations regarding replacement of lost, stolen,
mutilitated certificates of title. u. 5 31.051. If ":
certificate of title was not transferred because the
original was lost, stolen, or mutilated, the transferor
should seek a replacement certificate of title to transfer
to the purchaser.
If the seller's certificate of title was lost, stolen,
or mutilated after it was transferred to the purchaser, then
the department would have authority to recognize the change
in ownership. In order to issue a replacement certificate
of title to the purchaser, the department would need
sufficient evidence that the transfer of the certificate of
title took place. See &j. 5 31.047. Your question, then,
is whether the affidavit of the purchaser would be
sufficient to show both that a transfer of the original
certificate of title occurred and that the original was
subsequently lost, stolen, or mutilated. Affidavits are
included among the items that may serve as evidence that a
person is entitled to a certificate of title for
motorboat. fi. 5 31.047(C)(S). What constitutes sufficienz
proof in any particular circumstances is a fact question and
in the first instance, a matter for the department to
iI;ide. We think it is unlikely, however, that an affidavit
of the purchaser, with nothing more, would be sufficient
evidence of the sales transaction to justify issuance of a
certificate of title in the name of the purchaser.
SUMMARY
Whether the Department of Parks and
Wildlife may issue a replacement certificate
of title for a motorboat depends on the facts
of each case. ,
JIM MATTOX
Attorney General of Texas
p. 6446
Mr. Andrew Sansom - Page 13 (JM-1219)
MARYKELLER
First Assistant Attorney General
Lou MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RRNEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
P. 6447