The Attorney General of Texas
March 22, 1982
MARK WHITE
Attorney General
Mr. Charles D. Travis Opinion No. MW-458
Supreme Court SUildinQ Executive Director
P. 0. Box 12546
Texas Parks and Wildlife Department Re: Application for
Austin, TX. 76711. 2546
5121475-2501
4200 Smith School Road certificate of title under
Telex 910/874.1367 Austin, Texas 78744 section 31.047 of the Parks
Telecopier 5121475-0266 and Wildlife Code
Dear Mr. Travis:
1607 Main St., Suite 1400
Dallas, TX. 75201.4709
2141742-6944 You have asked us to determine what evidence should be required
by the Texas Parks and Wildlife Department to establish whether an
applicant for a motorboat certificate of title is entitled to such
4624 Alberta Ave., Suite 160
certificate, where said applicant is a possessary lienholder who has
El Paso, TX. 799052793
9151533.3464
foreclosed upon the motorboat pursuant to article 5504, V.T.C.S.,
because of unpaid storage or repair charges. In particular, you wish
to know whether you may require the applicant to show that he has
1220 Dallas Ave., Suite 202 notified those lienholders noted on the certificate of title of his
Houston, TX. 77002-6966
intent to foreclose.
7 131650-0666
Article XVI, section 37 of the Texas Constitution provides that
606 Broadway, Suite 312 mechanics, artisans and materialmen shall have a lien upon articles
Lubbock. TX. 79401-3479 repaired by them for the value of labor or materials furnished
6061747.5236
therefore. The constitution also states that "the Legislature shall
provide by law for the speedy and efficient enforcement of said
4309 N. Tenth. Suite S liens." The constitutional provision is self-executing, and the lien
McAllen, TX. 76501-1665 created between the owner and laborers and materialmen who contract
5121662-4547 directly with him does not depend on statutory provisions. Hayek v.
Western Steel Company, 478 S.W.Zd 786 (Tex. 1972).
200 Main Plaza, Suite 400
San Antonio, TX. 76205-2797 Article 5503, V.T.C.S.. gives a possessory lien to persons who
512/225-4191 have repaired any article until the cost of repairs have been paid in
full. Article 5504, V.T.C.S.. provides that upon the elapse of sixty
days without payment of the charges, the possessory lienholder shall
An Equal OppOrtUnitYI
Affirmative Action Employer notify the owner to pay the charges. If payment is not made, the
property may be sold at public sale. There is no express provision
for notice to othef lienholders. Compare V.T.C.S. art. 5504a (written
notice of charges on motor vehicle subject to article 6687-1,
V.T.C.S., must be made to lienholders of liens recorded on certificate
of title). Article 5506, V.T.C.S., provides that "[nlothing in this
title shall... in any manner affect or impair other liens arising at
common law or in equity, or by any statute of this State...."
However, an artisan's lien created pursuant to article 5503, V.T.C.S.,
p. 1592
Mr. Charles D. Travis - Page 2 (MW-458)
takes priority over a perfected security interest. Tex. Bus. 8 Comm.
Code 59.310; Gulf Coast State Bank v. Nelms, 525 S.W.Zd 866 (Tex.
1975).
Chapter 31, subchapter B-l of the Texas Parks and Wildlife Code
establishes the statutory scheme governing the issuance of
certificates of title to motorboats sold and possessed in Texas.
Section 31.045 of the code establishes the Texas Parks and Wildlife
Department as the issuing agency for such certificates of title.
Section 31.046 designates the individuals who must apply to the
department for such a certificate. Section 31.047 controls the form
and content of an application.
Section 31.047(c) requires that the application be accompanied by
"evidence reasonably required by the department to establish that the
applicant... is entitled to a certificate of title." Such evidence
may include:
(1) a certificate of title issued by another
state or jurisdiction;
(7-j a manufacturer's or importer's certificate;
(3) a bill of sale, assignment, or contract;
(4) a promissory note;
(5) a security agreement;
(‘3) an invoice;
(7) a bill of lading;
(8) an affidavit;
(9) a probate or heirship proceeding or
information;
(10) a judgment of a court of competent
jurisdiction; or
(11) other documents.
See also Parks and Wildlife Code 931.047(b)(6) (application form must
contain other information showing ownership of motorboat or security
interest therein).
Thus, pursuant to section 31.047(c), the department may require
evidence to establish ownership of the motorboat and to establish that
the applicant is entitled to a title certificate. The department may
require evidence that the rights of other lienholders are protected.
p. 1593
. -
Mr. Charles D. Travis - Page 3 (MW-458)
See Attorney General Opinion O-3867 (1941); see generally Attorney
General Opinion H-905 (1976).
Moreover, where an applicant seeks transfer of title, section
31.049(e) of the Parks and Wildlife Code provides that "[tlitle may be
transferred only by surrender of the original certificate of title
properly endorsed ;o show the transfer.w - In such cases, the title
must be surrendered as required before a new title may be issued.
The requirement imposed by section 31.049(e) of the code imposes
a hardship on the purchaser of the boat where the owner of the boat
cannot be located. In other statutes, the legislature has made
express provision for issuance of a new certificate of title when
ownership of registered property is involuntarily transferred.
V.T.C.S. art. 6687-1, §35 (motor vehicles). Sections 31.021 through
31.042 of the Parks and Wildlife Code provide that the department give
all undocumented motorboats a "certificate of number," including those
boats which have a certificate of title. A person who acquires
ownership of a vessel by an involuntary divestiture of ownership
formerly could apply for a certificate of number pursuant to section
31.036 of the Parks and Wildlife Code. See Acts 1971, 62d Leg., ch.
971, §5, at 2931. However, no comparab~provision exists for the
issuance of a new certificate of title to someone who purchases a boat
under article 5504, V.T.C.S. Of course, in a particular case, the
courts might order the department to replace a missing certificate.
-See Parks and Wildlife Code 531.051.
SUMMARY
The department must adhere to section 31.047,
V.T.C.S., in requiring information establishing
the right of an applicant for a motorboat
certificate of title to said certificate. Where
the applicant is a possessory lienholder who has
foreclosed on the boat pursuant to article 5504,
V.T.C.S.. such application must be accompanied by
evidence establishing ownership of the boat and
the applicant's right to certificate. Where the
applicant seeks transfer of title, the original
title properly endorsed to show the transfer must
be surrendered.
-MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
p. 1594
., .
Mr. Charles D. Travis - Page 4 W-458)
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
p. 1595
Untitled Texas Attorney General Opinion
Combined Opinion