September 11, 1990

Mr. Andrew Sansom Executive Director Texas Parks andWildlife Department 4200 Smith School Road Austin, Texas 78744
DearWr. Sansom: Opinion No. JM-1219 Re: Authority of the Parks and Wildlife Department to accept an affidavit in lieu of acertificate of title for aboat (RQ-2043)

your predecessor asked us to render an opinion about issuance of anew certificate of title foramotorboat that isalready covered by acertificate of title when the applicant cannot produce the existing certificate of title endorsed by the transferor. Specifically, you ask whether the Parks andWildlife Department may issue acertificate of

- title based on anaffidavit inwhich the applicant explains

themissing certificate of title. The ownership of a motorboat, other than a new motorboat, isevidenced by acertificate of title issued by the department. Parks and Wildlife Code 5 31.045. A purchaser ofa motorboat must apply for acertificate of title not later than 20 days after the sale. &J. 5 31.046(a). An application foracertificate of title **mUSt** be accompanied by information showing ownership and evidence establishing that the applicant isentitled to acertificate of title. s. 5 31.047. Section 31.053 of the Parks andWildlife Code governs the transfer ofmotorboats. Section 31.049(e) provides as follows: Title ~~aybe transferred onlv bv surrender

. . of the oriainal certat== of title orooerlv aorsed to show the transfer orby 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 fortransferring ownership ofmotorboats); C Attorney General Opinion MW-458 (1982). Inother words, if

p. 6445Mr. 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 isconcerned. 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 areplacement certificate of title to transfer to the purchaser. Ifthe seller's certificate of title was lost, stolen, ormutilated after itwas transferred to thepurchaser, then the department would have authority to recognize the change inownership. Inorder 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 showboth that a transfer of the original certificate of title occurred and that the original was subsequently lost, stolen, ormutilated. Affidavits are included among the items that may serve as evidence that a person is entitled to a certificate of title for motorboat. fi. 531.047(C)(S). What constitutes sufficienz proof inanyparticular circumstances isa fact question and in the first iI;ide. instance, amatter for the department to

We think it isunlikely, 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 inthe name of the purchaser.
SUMMARY

Whether the Department of Parks and Wildlife may issue areplacement certificate of title foramotorboat depends on the facts of each case. ,

JIM MATTOX Attorney General of Texas

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MARYKELLER First Assistant Attorney General
LouMCCREARY 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