Judges: MARK WHITE, Attorney General of Texas
Filed Date: 3/22/1982
Status: Precedential
Modified Date: 7/6/2016
Mr. Charles D. Travis Executive Director Texas Parks and Wildlife Department 4200 Smith School Road Austin, Texas 78744
Re: Application for certificate of title under section
Dear Mr. Travis:
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 certificate, where said applicant is a possessory lienholder who has 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 notified those lienholders noted on the certificate of title of his intent to foreclose.
Article
Article 5503, V.T.C.S., gives a possessory lien to persons who 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 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 other 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 "[n]othing 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., takes priority over a perfected security interest. Tex. Bus. Comm. Code § 9.310; Gulf Coast State Bank v. Nelms,
Chapter 31, subchapter B-1 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;
(2) a manufacturer's or importer's certificate;
(3) a bill of sale, assignment, or contract;
(4) a promissory note;
(5) a security agreement;
(6) 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 §
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. See Attorney General Opinion O-3867 (1941); see generally Attorney General Opinion H-905 (1976).
Moreover, where an applicant seeks transfer of title, section
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
Very truly yours,
Mark White Attorney General of Texas
John W. Fainter, Jr. First Assistant Attorney General
Richard E. Gray III Executive Assistant Attorney General
Prepared by Susan L. Garrison Assistant Attorney General