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 'Certificateof Title' means a written instrumentwhich may be issued solely by .andunder the authorit (StateHighway Department"Iof the department, and which must give the following data together with such other data as the departmentmy require from time to time: II

. . . "(j)A statement indicating 'rightsof survivorship' when an agreement providing that the motor vehicle is to be held between a .husbandand his wife jointlywith 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 .andwife and, if signed, the certificate shall -3551-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:

"Wheneverthe ownership of a motor vehicle registered or licensed within this state is transferredby operation of law, as upon inheritance,devise or bequest, bankruptcy,receivership, judicial sale, or any other lnvoluntary divestitureof .ownership,the department shall issue a new certificate of titleupon being provide,d

with a certified copy of the order appointing a temporaryadministrator or of the -probateproceedings, or letters testamentaryor of administration, if any . . .If an agreement providing for right of survivorship is signed by the husband and wife, upon the death of either spousettiedepartment shall issue a new certificate of title to the surviving spouse upon being providedwith a copy of the death certificate of the deceased~spouse."Asamended 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:

"Wheretwo 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 representativesof such deceased joint owner in the samemanner as if his interest.hadbeen severed and ascertained. Provided,however, that by an agreement in writing of jointowners of 'property,the interest of any joint owner who diesmay be made to survive to the surviving joint owner or joint owners but no such agreement shall be inferred from?themere fact that the property is held in joint ownership," Upon consideration of Section 46, the Court in Hilleyv, 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 communitypropertybetween spouses. The Court in that case held that -3552-

rMr. D. C. Greer, page 3 (C-735 )

separate propertyof spousesmay be the subject of joint tenancy between them.with:the rightof survivorship,but snot community property .~

1n.a later case~upholdinga 'jointtenancy be- .tweenspouses with right of survivorship, the Court in Davis v. East Texas Savings and,Loan Association, 163 Tex 361, 35 s.w.2 92

Jilley case did not govern the'situatik where separate property was the subject of,the joint tenancywith 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,thatany ;.;.husband

& hiswife may by written agreement create a jointestate ou't'of~their commuriity

p&-
.~ perty,with rights,of, survivorship." The Court held in part: ,"Theamendme'nt

attempts to authorize spouses to treat a jointestate with rights of survivorship 'outof their community property.' In Hilley, we stated ,the:,reasons that this result could~not constitutionallybe accomplished, and those reasons are as va~lid

a.fterthe amendment as they were before. ..Constitutional limitations are as binding 'uponthe 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 creationof 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 spousesmay create such a joint,tenancy with rights of survivorship as lorig as they do not use community property. The Williams.caseheld as unconstitutionalan amendment which authorized the spouses by mere agreement to transmute community property into,,a joint tenancywith right of survivorship. The amendment was heldwholly unconstituti,onalsince 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 communityproperty, 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 invaliditydoes not prevent the issuance of Certificatesof Title containing the statementsprovided for therein,but merely prevents thismethod beingused as an attempt to treat a joint estate with rights of survivorshipout of community property. SUMMARY

-. Sections 24 and 35 of the Certificate of

'TitleAct as amendedby SenateBill 58 Acts of the 59th Legislature Regular Session' ig65 Chapter 658 applies'toall classes of prop&rty. SenateBill',58is 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 survivorshipout cf their community property. This invaliditydoes not prevent the issuanceof Certificatesof Title containing the statementsprovidedfor therein, butmerely prevents thismethod being used as an attempt to create a joint estatewith rights of survivorship out of-communityproperty. Very trulyyours,

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
APPROVEDFOR THE ATTORNEY GENERAL BY: T. B. WRIGHT -3554-