‘Ihe Honorable Jesse James 

Treasurer, State of Texas 

State Capitol Building 

Austin, Texas 78711 

Dear Mr. James: 

Opinion No. H- 745 

Re: Procedure for return to 

insurance companies of 

matured securities filed 

as collateral with the 

State Treasurer. 

You have requested our opinion concerning your authority to utilize 

certain procedures with regard to the return of matured securities to an 

insurance company upon instruction from the State Board of Insurance, 

As required by the Insurance Code, the State Treasurer is the 

custodian of various securities pledged by insurance companies. Ins. 

Code art. 1. 10, 5 17(a); see arts. 3.15, 3.23, 8.05, 9.12, 14.10, 17.25, 

19.06. Upon order of theommissioner of Insurance, the Treasurer 

is to “release, transfer and deliver such deposit or deposits to the owner 

as directed in said order.” Ins. Code art. 1.10, 5 17(e). 

Due to the costs and risks involved in the transmission of the securities, 

you have asked the, following questions: 

(1) May the State Treasurer require insurance 

companies making deposits to designate a local 

agent to whom the securities can be delivered? 

(2) May the State Treasurer or the Commissioner 

of Insurance require insurance companies to deposit 

only registered securities in his care? 

(3) May the State,Treasurer deliver the securities 

to the Board of Insurance for subsequent delivery 

to the companies? 

p. 3163 
The Honorable Jesse James, page 2 (H-745) 

While the State Treasurer has no expressly provided rule making 

authority, he may exercise those powers necessary and proper to the 

fulfillment of his statutory duties. Terre11 v. Sparks, 135 S. W. 519 

(Tex. Sup. 1911); Corzelius v. Railroad Commission, 182 S. W. 2d 412 

(Tex. Civ. App. --Austin 1944, no writ). The State Treasurer has the 

statutory duty to deliver these securities. However, the legal delivery 

of a document does not necessarily entail a manual delivery. Henry v. 

Phillips, 151 S. W. 533 (Tex. Sup. 1912). The court in that case held 

that the deposit of a deed with a bank constituted a sufficient delivery. 

In Brown v. Rodgers, 248 S. W. 750 (Tex. Civ. App. --Amarillo 1923, 

no writ), the court stated: 

Any act or declaration on the part of the 

grantor, denoting an intention to give a present 

effect to the executed conveyance, is said to be 

sufficient to constitute delivery. (citations 

omitted) Thus leaving the deed with the notary 

or an attorney, to be delivered to the grantee 

when called for, delivery to the recorder for 

registration with instructions to deliver to the 

grantee when recorded, deposit in the post office 

addressed to the grantee, and acts of such character have been held sufficient to constitute delivery. 

248 S. W. at 750. 

See also, Tyler V. Bauguss, 148 S. W. 2d 912 (Tex. Civ. App. --Dallas 

1941, writ dism’d. jdgmt. car. ); Wvcoff Warehouse, Inc. v. Public 

Service Commission, 403 P. 2d 168 (Utah 1965). 

Since article 1.10, section 17(e) is silent with respect to the manner 

of delivery, it is our view that reasonable procedures may be adopted 

for the delivery of the securities. Accordingly, while we do not believe 

the designation of a local agent may be required, in our opinion it may 

be indicated that delivery will be made in Austin, Texas, to the owner 

or his authorized representative. 

Your second question is whether companies may be required to deposit 

only registered securities. Article 1.10, section 17(a) and article 3.15 of 

the Insurance Code require only that the securities governed thereby be 

legal investments of the companies. Articles 8.05 and 19.06 require only 

p. 3164 
The Honorable Jesse James, page 3 (H-745) 

that the securities be one of those listed in article 2.10. See also 

Ins. Code arts. 9.12, 9.18. Only article 14.10 regarding mutual 

assessment companies and article 17.25 regarding county mutual 

companies do not~definitively provide which securities are acceptable. 

Those statutes allow “convertible securities subject to approval of the 

Board” of Insurance to be deposited. In our view where the type of 

securities is expressly limited by statute, neither the Treasurer nor 

the Commissioner of Insurance may require these securities to be 

registered, for powers may not be implied where a statute is explicit 

on the point in question. Creager v. Hidalgo County Water Improvement 

Dist. No. 4, 283 S. W. 151 (Tex.Comm’n.App. 1926, jdgmt. adopted). 

Your final question is whether the Treasurer may deliver the 

securities to the Board of Insurance for subsequent delivery to the 

various companies. Article 1.10, section 17(e) provides that the Treasurer shall “release, transfer and deliver such deposit or deposits to 

the owner as directed in said brder. ” Since the statute expressly requires delivery by the Treasurer to the owner it is our view that he may 

not merely deliver the securities to the Board of Insurance, 

SUMMARY 

The State Treasurer may indicate that delivery 

of securities will be made in Austin, Texas, to the 

owner or his authorized representative. 

Neither the State Treasurer nor the State Board 

of Insurance may require cleposited securities to be 

registered where the type of security is expressly 

limited by statute. 

The Treasurer may not merely deli,ver the 

securities to the Roard of Insurance for subsequent 

delivery. 

p. 3165 
The Honorable Jesse James, page 4 (H-745) 

APPROVED: 

T232b.J .o,.m 

DAVID M. KENDALL, First Assistant 

SEATH, Chairman 

;--L 

C. ROBERT 1 

Opinion Committee 

p. 3166