.~ 

### THEATTORNEY GENERAL

OF TEXAS

December17, 1963

Honorable D. C. Greer State Highway Engineer Texas Hi hway Austin 18 Department

, Texas

Dear Mr. Greer: Opinion No. C-194 Re: Review of AttorneyGeneral'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 requestingan opinion from this office upon certain questionsyou have stated that:

"AttorneyGeneral OpinionNo. V-1049 rendered April 29, 1950, advisedus not to issue a certificateof title to a motor vehicle in the name of multiple owners joined dlsjunctively as owners on the certificateof title by 'or' or by 'and/or.' II

. . . "Section46 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 interestand 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 agreementprovide that if either joint owner dies, his Interestwill surxlve to the remaining joint owner or owners. In connection

with the foregoingfacts you have posed the followingquestions:

"1 , Should we permit a written agreement, such as contemplatedin the above section of the

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Texas ProbateCode, to be filed with .for title of joint owners so that in an application the event of

. . the death of either owner, the aurvlvlngJoint owner could claim title to the motor vehicle in accordance with the agreementon file by merely filing an application for certificateof title supportedby an affidavitof fact similar to the type of affidavit specifiedIn Section 35 P.C. 1436-l but without regard to the Interest of other heirs in the estate of the deceasedowner. "2. If Question 1 Is answered in the affirmative could we also honor an agreementof joint owners If the agreementwas not on file with us prior to the death of the joint owner in whose name title had previouslybeen Issued. "3. Should we now issue a certificateof 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 interesthad been severed and ascertained. Provided,however, that by an agreement In writinn of joint owners of property, %he Interestof any joint owner who dies may be made to survive to the survivingjoint owner or joint owners, but no such agreement shall be lnferred from the mere fact that the property Is held in joint ownership.

. . ." (Emphasisadded). Section 8 of Article 1436-1,Vernon's Penal Code, the Certificateof 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 registeredor licensedwithin this State or elsewhere,

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

Section 33 of Article 1436-1,provides that: 'NO motor vehiclemay be disposed of at subsequentsale unless the owner designated in the certificateof title shall transfer the certificateof title on form to be, prescribed by the Departmentbefore a Notary Public,.

. . and no title to any motor vehicle shall pass or vest until such transferbe so executed." fEmphasis added). Section 35 of Article 1436-l provides that: "Wheneverthe ,ownershlp of a motor vehicle registeredor licensedwithln~ this State is transferred by operationof,law, as upon Inheritance, .devlse or bequest,bankruptcy,reclvershlp,judicial sale, or any other involuntarydivesture of ownership, the Departmentshall issue a new certificate of ,title,upon

being providedwith certifiedcopy 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 certificateshall issue), OP order, OP bill of sale from the officer making the judicial sale.

. .- (Emphasisadded). Section 53 of Article 1436-l provides that: "All sales made In violationof this Act shall be void and no title shall pass until the rovlsions of this Act have been compliedwith." Emphasis added). It is most clear from a study of the foregoingprovisions contained in Article 1436-1, the Certificateof Title Act, that an effort to transfer title to a motor vehiclewlthout complyingwith the provisionsof Article 1436-l results in a failure of legal title to pass. This positionhas uniformly been followedby 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); ContinentalCredit 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 foregoingstatutesand the decisions of our courts, it would follow that an agreementbetween 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 sufficientin Itself to transfer legal title to the motors yvehlcleto the surviving joint owner pursuant to Article 1436- 1 in a situationwhereby the agreementbetween the joint owners Is merely presented or filed for the purpose of having a new certificateof title issued in the name of the surviving joint owner. This method of transferringownership In a motor vehicle is not authorizedby 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 agreementspursuant to Section 46 of the Texas Probate Code involvingmotor vehiclesare a nullity. In the case of Elder ChevroletCo. v. Bailey County Motor Co., 151 S.W.2d 938 (1941), the Court stated In its opinion that:

"The transactionof March 18, 1940, between plaintiffand Bailey County Motor Companywas lnsufficientto 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 entirelyvoid and ineffective. An InefSectlve attempt to conveymay in some cases be construedas a contract to convev. This transaction,In our opinion,was sufficientto bind the plaintiff so far as in its power to take the Initial steps necessary to enable Bailey County Rotor Company to obtain a certificateof tit1 (Emphasisadded). e. . . .

II

. . . "Rightsplaintiffmay have as to this motor car, but the right to foreclosea lien thereon It has not. It may have a right to recover the title and posaesslonof the car from defendantBailey County Motor Company,but such right Is subject to an adjustmentof 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 vehiclewithout transfer of a title certificateto the buyer was valid as between the partieswhen the purposes of the Certificateof Title Act are not defeated even thoughunder 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 agreementmade by joint owners of a motor vehiclepursuant to Section 46 of the Texas Probate Code may be sufficientto establish ownershipof a motor vehicle as between the joint owners and their heirs, such an agreementwould not be sufficient itself to authorizea new certificateof title for the motor vehiclebeing issued in the name of the surviving joint owner. The new certificateof title could be issued only after the provisions set forth In either Section 33 or Section 35 of Article 1436-l have been compliedwith. We are of the further opinion that this would be true regardlessof 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 Departmentbefore or after the death of one of the joint owners of the motor vehicle.

Attorney General'sOpinion No. V-1049 (1950),held that the State Highway Departmentis not authorized to issue a certlficate of title to a motor vehicle in the name of multiple owners,,jo;ned

isjunctlvel$

as owners on the certificateof title by or and by "and/or. In view of our foregoingopinion answering your first two questions in the negative,and the authority cited in connectiontherewith,we are of the further opinion that the provisionsof Section 46 of the Texas Probate Code do not than e & or alter the holding in Attorney General'sOpinion No. v-10 g (1950). SUMMARY

An agreementmade by joint owners of a motor vehicle,pursuant to Section 46 of the Texas Probate Code, would not in itself be sufficientto authorize the State Highway Departmentto Issue a new certlflcate of title to the motor vehicle in the name of the surviving joint owner. The provisionsof Section 46 of the Texas Probate Code do not alter or amend the holding in Attorney General'sOpinion No. V-1049 (1950). Yours very truly, WAGGONER CARR Attorney General

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.

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 APPROVEDFOR THE ATTORm GENERAL BY: H. Grady Chandler By: Assistant

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