.~ 

THEATTORNEY GENERAL 

OF TEXAS 

December 17, 1963 

Honorable D. C. Greer 

State Highway Engineer 

Texas Hi hway 

Austin 1 8 

Department 

, Texas 

Dear Mr. Greer: 

Opinion No. C-194 

Re: Review of Attorney General's 

Opinion No. V-1049 (1950) 

in light of Section 46 of 

the Texas Probate Code as 

amended by the 57th Legislature and related questions. 

In your letter requesting an opinion from this office 

upon certain questions you have stated that: 

"Attorney General Opinion No. V-1049 

rendered April 29, 1950, advised us not to 

issue a certificate of title to a motor vehicle 

in the name of multiple owners joined dlsjunctively as owners on the certificate of title 

by 'or' or by 'and/or.' 

II 

. . . 

"Section 46 of the Probate Code of Texas, 

1955 as amended by the 57th Texas Legislature, 

Regular Session, 1961 provides for severance 

of a deceased joint owners interest and for 

his interest to descend, and be vested in, the 

heirs or legal representatives of his estate. 

The Act provides, however, that joint owners 

may by written agreement provide that if either 

joint owner dies, his Interest will surxlve 

to the remaining joint owner or owners. 

In connection with the foregoing facts you have posed 

the following questions: 

"1 , Should we permit a written agreement, 

such as contemplated in the above section of the 

-934,- 
Hon. D. C. Greer, page 2 (C- 194 ) 

Texas Probate Code, to be filed with 

.for title of joint owners so that in 

an application 

the event of . . the death of either owner, the aurvlvlng Joint owner 

could claim title to the motor vehicle in accordance 

with the agreement on file by merely filing an application for certificate of title supported by an 

affidavit of fact similar to the type of affidavit 

specified In Section 35 P.C. 1436-l but without 

regard to the Interest of other heirs in the estate of the deceased owner. 

"2. If Question 1 Is answered in the affirmative could we also honor an agreement of joint 

owners If the agreement was not on file with us 

prior to the death of the joint owner in whose name 

title had previously been Issued. 

"3. Should we now issue a certificate of title 

to multiple owners of a vehicle and allow the words 

Ior1 or 'and/or' to appear thereon and subsequently 

allow either owner to claim or assign title without 

a release from the other." 

Section 46 of the Texas Probate Code, as amended in _ . - __ 1961, reads In part as follows: 

"Where two (2) or more persons hold an estate, 

real, personal, or mixed, jointly, and one (1) 

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 writinn of joint owners of property, 

%he 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 lnferred from the mere fact that the property Is 

held in joint ownership. . . ." (Emphasis added). 

Section 8 of Article 1436-1, Vernon's Penal Code, the 

Certificate of Title Act, provides that: 

"The term 'Subsequent Sale' means the bargain, 

sale, transfer, or delivery, with Intent to pass an 

interest therein, other than a lien, of a motor veh,icle which has been registered or licensed within 

this State or elsewhere, . . ." (Emphasis added). 

-935- 
Hon. D. C. Greer, page 3 (C-~ 194.1 

Section 33 of Article 1436-1, provides that: 

'NO motor vehicle may be disposed of at 

subsequent sale unless the owner designated in 

the certificate of title shall transfer the 

certificate of title on form to be, prescribed 

by the Department before a Notary Public,. . . 

and no title to any motor vehicle shall pass 

or vest until such transfer be so executed." 

fEmphasis added). 

Section 35 of Article 1436-l provides that: 

"Whenever the ,ownershlp of a motor vehicle 

registered or licensed withln~ this State is transferred by operation of,law, as upon Inheritance, 

.devlse or bequest, bankruptcy, reclvershlp, judicial 

sale, or any other involuntary divesture of ownership, the Department shall issue a new certificate 

of ,title,upon being provided with certified copy of 

the probate proceedings, If any (if no administration 

3s necessary, then upon affidavit showing such fact 

and all of the heirs at law and specification by the 

heirs as to In whose name the certificate shall issue), OP order, OP bill of sale from the officer 

making the judicial sale. . .- (Emphasis added). 

Section 53 of Article 1436-l provides that: 

"All sales made In violation of this Act 

shall be void and no title shall pass until the 

rovlsions of this Act have been complied with." 

Emphasis added). 

It is most clear from a study of the foregoing provisions contained in Article 1436-1, the Certificate of Title 

Act, that an effort to transfer title to a motor vehicle wlthout complying with the provisions of Article 1436-l results in 

a failure of legal title to pass. This position has uniformly 

been followed by the courts of this State in such cases as 

Wise v. Cain, 212 S.W.2d 880 (Tex.Clv.App. 1948, error ref. 

n.r.e.); Griffin v. Moon, 288 S.W.2d 543 (Tex.Clv.A p, 1956); 

Continental Credit Corp. v. Norman, 303 S.W.2d 449 'i Tex.Civ. 

A 1957 f 

2pdp+25 (T;xP~~~'A~~.'l~;~j"' ' 

-Bryant, 287 S.W. 

In view of the foregoing statutes and the decisions 

of our courts, it would follow that an agreement between joint 

-936- 
Hon. D. C. Greer, page 4 (C- 194 ) 

owners of a motor vehicle, pursuant to Section 46 of the Texas 

Probate Code, that the Interest of any joint owner who dies 

may be made to survive to the surviving joint owner would not 

be sufficient in Itself to transfer legal title to the motors 

yvehlcle to the surviving joint owner pursuant to Article 1436- 

1 in a situation whereby the agreement between the joint owners 

Is merely presented or filed for the purpose of having a new 

certificate of title issued in the name of the surviving joint 

owner. This method of transferring ownership In a motor vehicle 

is not authorized by either Section 33 or Section 35 of Article 

1436-l. 

However, this does not mean that Section 46 of the 

Texas Probate Code, and Article 1436-l are in conflict, or 

that agreements pursuant to Section 46 of the Texas Probate 

Code involving motor vehicles are a nullity. In the case of 

Elder Chevrolet Co. v. Bailey County Motor Co., 151 S.W.2d 938 

(1941), the Court stated In its opinion that: 

"The transaction of March 18, 1940, between 

plaintiff and Bailey County Motor Company was lnsufficient to vest the title to the 1939 model 

Ford In Bailey County Motor Company. For this 

purpose same was void and ineffective. This does 

not necessarily mean that it was entirely void and 

ineffective. An InefSectlve attempt to convey may 

in some cases be construed as a contract to convev. 

This transaction, In our opinion, was sufficient to 

bind the plaintiff so far as in its power to take 

the Initial steps necessary to enable Bailey County 

Rotor Company to obtain a certificate of tit1 

(Emphasis added). 

e. . . . 

II 

. . . 

"Rights plaintiff may have as to this motor 

car, but the right to foreclose a lien thereon It 

has not. It may have a right to recover the title 

and posaesslon of the car from defendant Bailey 

County Motor Company, but such right Is subject to 

an adjustment of equities. . . ." (Emphasis acided 

In the case of Rush v. Smltherman, 294 S.W.2d 873 

(Tex.Clv.App. 1956, error ref. n.r.e.), the Court held that a 

contract to sell and a sale of a motor vehicle without transfer 

of a title certificate to the buyer was valid as between the 

parties when the purposes of the Certificate of Title Act are 

not defeated even though under Section 33 and Section 53 of 

-937- 
s -- 

Hon. D. C. Greer, page 5 (C- 194 ') I, 

Article 1436-1, failure to transfer the certificate renders the 

sale void. 

Consequently we,are of the opinion that while an 

agreement made by joint owners of a motor vehicle pursuant to 

Section 46 of the Texas Probate Code may be sufficient to establish ownership of a motor vehicle as between the joint 

owners and their heirs, such an agreement would not be sufficient itself to authorize a new certificate of title for the 

motor vehicle being issued in the name of the surviving joint 

owner. The new certificate of title could be issued only after 

the provisions set forth In either Section 33 or Section 35 of 

Article 1436-l have been complied with. We are of the further 

opinion that this would be true regardless of whether the agreement made by the joint owner of the motor vehicle, pursuant to 

Section 46 of the Texas Probate Code, was filed with the State 

Highway Department before or after the death of one of the joint 

owners of the motor vehicle. 

Attorney General's Opinion No. V-1049 (1950), held that 

the State Highway Department is not authorized to issue a certlficate of title to a motor vehicle in the name of multiple owners,,jo;nedisjunctlvel$ as owners on the certificate of title 

by or and by "and/or. In view of our foregoing opinion answering your first two questions in the negative, and the authority 

cited in connection therewith, we are of the further opinion that 

the provisions of Section 46 of the Texas Probate Code do not 

than e 

& 

or alter the holding in Attorney General's Opinion No. 

v-10 g (1950). 

SUMMARY 

An agreement made by joint owners of a motor 

vehicle, pursuant to Section 46 of the Texas Probate 

Code, would not in itself be sufficient to authorize 

the State Highway Department to Issue a new certlflcate of title to the motor vehicle in the name of 

the surviving joint owner. 

The provisions of Section 46 of the Texas 

Probate Code do not alter or amend the holding in 

Attorney General's Opinion No. V-1049 (1950). 

Yours very truly, 

WAGGONER CARR 

Attorney General 

-938- 
“- . 

Hon. D. C. Greer, page 6 (C- 194 ) 

PB:wb:mkh 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Norman Suarez 

John Reeves 

Murray Jordan 

V. F. Taylor 

APPROVED FOR THE ATTORm GENERAL 

BY: H. Grady Chandler 

By: 

Assistant 

-939-