Mr. D. C. Greer Opinion No. C-735 

State Highway Engineer 

Texas Highway Department Re: Whether those portions 

Austin, Texas of Sections 24 and ,35 

of the Certificate of 

Title Act, V.P.C., 

. 

1436-1, relating to 

rights of survivorship agreements are 

unconstitutional? 

Dear Mr. Greer: 

You have requested an opinion of this office on 

the following question: 

"Are those portions of Section 24 and -35 

of the Certificate of Title Act, V.P.C. 1436-1, 

relating to rights of survivorship agreements 

unconstitutional?" 

Section 24 of Article 14X6-1, Vernon% Penal 

Code, provides in part: 

"The term 'Certificate of Title' means a 

written instrument which may be issued solely 

by .and under the authorit 

(State Highway Department "I 

of the department, 

and which must give 

the following data together with such other 

data as the department my require from time 

to time: 

II 

. . . 

"(j) A statement indicating 'rights of 

survivorship' when an agreement providing that 

the motor vehicle is to be held between a 

.husband and his wife jointly with the interest 

of either spouse who dies to survive to the 

surviving spouse is surrendered with the application for certificate of title. This agreement Is valid only if signed by both husband 

.and wife and, if signed, the certificate shall 

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Mr. D. C. Greer, page 2 (C-735 - 

be issued in the name of both." As amended 

Acts 1965, 59th Leg., p.1514, ch.658, 81. 

and Section 35 provides in part: 

"Whenever the ownership of a motor vehicle 

registered or licensed within this state is 

transferred by operation of law, as upon inheritance, devise or bequest, bankruptcy, receivership, judicial sale, or any other lnvoluntary divestiture of .ownership, the department 

shall issue a new certificate of title upon being 

provide,d with a certified copy of the order 

appointing a temporary administrator or of the 

-probate proceedings, or letters testamentary or 

of administration, if any . . . If an agreement 

providing for right of survivorship is signed 

by the husband and wife, upon the death of either 

spouse ttie department shall issue a new certificate 

of title to the surviving spouse upon being 

provided with a copy of the death certificate 

of the deceased~spouse."As amended Acts 1965, 

59th Leg., p.1514, ch.658, ~2. 

Section 46 of the Texas Probate Code prior to . 

its amendment in 1961 was similiar to the present sections 

under consideration. That section prior to the 1961 

amendment read as follows: 

"Where two or more persons hold an estate, 

real, personal, or mixed, jointly, and one joint 

owner dies before severance, his interest in 

said joint estate shall not survive to the remaining joint owner or joint owners, but shall 

descend to, and be vested in, the heirs or legal 

representatives of such deceased joint owner in 

the same manner as if his interest.had been 

severed and ascertained. Provided, however, 

that by an agreement in writing of joint owners 

of 'property, the interest of any joint owner 

who dies may be made to survive to the surviving 

joint owner or joint owners but no such agreement shall be inferred from?the mere fact that 

the property is held in joint ownership," 

Upon consideration of Section 46, the Court 

in Hilley v, Hilley, 191 Tex. 569, 342 S.W.2d 565, (1961), 

found that it was unconstitutional only insofar as it 

attempted to effectuate a partition of community property between spouses. The Court in that case held that 

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r 
Mr. D. C. Greer, page 3 (C-735 ) 

separate propertyof spouses may be the subject of joint 

tenancy between them.with:the rightof survivorship, but 

snot community property 

.~ 

1n.a later case~upholding a 'joint tenancy be- 

.tween spouses with right of survivorship, the Court in 

Davis v. East Texas Savings and, Loan Association, 163 

Tex 361, 35 Jilley s.w.2 92 

case did not govern the'situatik where separate property 

was the subject of,the joint tenancy with right of sur'- 

vivorship. Also see Nix v. 

Civ. APP. 1962). 

Davis, 358 s.w.2d 225 (Tex. 

. .The. recent case of Williams v. McKnight, 432 

S.W.2d '535, (Tex..Sup. 1966), construed the lgbl amendment to Section 26 of the Probate Code w~hich was enacted 

following the Hilley case. The amendment reads'as 

follows: 

,,~‘, It is' ~specifica~lly provided,that any 

;.;.husband & his wife may by written agreement 

create a jointestate ou't'of~their commuriity p&- 

.~ perty, with rights,of, survivorship." 

The Court held in part: 

,"The amendme'nt attempts to authorize spouses 

to treat a jointestate with rights of survivorship 'out of their community property.' In Hilley, 

we stated ,the:,reasons that this result could~not 

constitutionally be accomplished, and those reasons 

are as va~lid a.fter the amendment as they were 

before. ..Constitutional limitations are as binding 

'upon the Legislature as they are upon then Judiciary!' 

In neither the Hilley case nor the Williams case 

did the Court hold that the orovision orovidine: for the 

creation of a joint tenancy with right-of survrvorship. as 

provided in Section 46 was unconstitutional as to property 

other than community property, To the contrary, both 

cases recognize that spouses may create such a joint,tenancy with rights of survivorship as lorig as they do not 

use community property. The Williams.case held as unconstitutional an amendment which authorized the spouses by 

mere agreement to transmute community property into,,a 

joint tenancy with right of survivorship. The amendment 

was held wholly unconstituti,onal since it applied strictly to community property;' Consequently, Sections 24 and 

35,of the Certificate of Title Act, as amended by Senate 

;3553- 
. . . . 

Mr. D. C, Greer, page 4 (C-735 ) 

Bill 58, Acts of the 59th Legislature, Regular Session, 

1965, Chapter 658, applies to all classes of property. 

Senate Bill 58 is valid as applied to separate property. 

As applied to community property, it is only invalid insofar as the amendment attempts to authorize spouses to 

create a joint estate with rights of survivorship out of 

their community property. This invalidity does not prevent the issuance of Certificates of Title containing 

the statements provided for therein, but merely prevents 

this method being used as an attempt to treat a joint 

estate with rights of survivorship out of community 

property. 

SUMMARY 

-. 

Sections 24 and 35 of the Certificate of 

'Title Act as amended by Senate Bill 58 Acts of 

the 59th Legislature Regular Session' ig65 

Chapter 658 applies'to all classes of prop&rty. 

Senate Bill',58 is valid as apnlied to separate 

property. As applied to community property, it 

is only invalid insofar as the amendiiient attempts 

to authorize spouses to treat a joint estate with 

rights of survivorship out cf their community 

property. This invalidity does not prevent the 

issuance of Certificates of Title containing 

the statements provided for therein, but merely 

prevents this method being used as an attempt 

to create a joint estate with rights of survivorship out of-community property. 

Very truly yours, 

WA:dh:wy 

APPROVED: 

OPINION COMMITTEE 

WAGGONER CARR 

Attorney General 

'By: Lb 

;R Wade Anderson 

Assistant 

W..V. Geppert, Chairman 

Marietta Payne 

John Reeves 

W. 0. Shultz 

Terry Goodman 

APPROVED FOR THE ATTORNEY GENERAL 

BY: T. B. WRIGHT 

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