Honorable Homer (Earrison, Jr. 

Director, Department of Public Safety 

CempMabry 

Austin, Texas 

Dear Sir: Opinion No. O-2878 

Attention8 J. B. Draper, Chief 

Certificate of Title Division 

Re: Issuance of Certificate of 

Title under facts set forth. 

We acknowledge receipt of your letter of October 31, 1940, in 

which you request the opinion of this Department upon the following fact 

situations 

"IAt cwns an automobile and has a Certificate of Title issued by the 

Department of Public Safety. 'El purchases this motor vehicle frcm ‘A* 

and does not require 'A' to deliver to him the assigned title and does 

not file an application for title in his ('B') name. 'B' sells the ca.r 

to 'C' and 'C' does not require 'B' to deliver to him an assigned Certificate of~Title. Non 'C' is endeavoring to obtain a Certificate of 

Title in his name and 'A's' whereabouts are unknown and 'B' is unable 

to locate 'A' in order to get him to assign the Certificate of Title 

tc 'B' so that 'B* may make further assignment to 'Ct." 

It is clear that each of the transactions set cut in the fact 

situation above quoted are in violation of Article 1436-1 Vernon's Annotated Penal Code of Texas which is the Certificate of Title Act. Seotion 53 of this Act provides that: 

"All sales made in violation of this Act shall be void and no title shall 

pass until the provisions of this Act have been ccmplied with." 

Under these circumstances it is the duty of the Deparhnent of 

public Safety to refuse issuance of a Csritificateof Title under the authority of Section 38, the pertinent provision of which reads as follows: 

"(a) That the application contains any false or fraudulent statement, or 

that the applicant has failed to furnish required information requested 

by the Department, or that the applicant is not entitled to the issuance 

of a certificate of title under this Act." 

Section 39 of the Act sets cut the procedure for appeal from 

an adverse decision of the Department and provides that in the event the 

Department's ruling is sustained that a certificate of title for the particular motor vehicle involved will be issued only upon suchreasonable 

rules and regulations as may be prescribed by the Department. Section 55 
Hon. Homer Garrison, Jr., page 2 (O-2878) 

of the Act gives the Department authority to promulgate such reasonable 

rules and regulations a8 may be necessary in carrying cut the orderly 

operation of the Act. It is stated in your letter that you desire an 

opinion "as to what should be required of the present owner in this and 

similar oases in order that ha may be issued 8 certificate of title." 

We presume that by the term "present owner" you refer to the person 

designated "C" in your quoted faot situation. Under Section 53 above 

quoted, title has never passed from "A". "C", therefore, is not ths 

present owner of the vehicle and is not entitled to a certificate of 

title. Under Section 38, it is the duty of the Department to refuse 

issuance of the certificate until such time as provisions of the Act 

have been complied with, or until such time as it clearly appears to 

the satisfaction of the Department that "C" is entitled to the issuance of a certifiaate. 

It is suggested that in lieu of ocmplianoe with the provisions 

of Article 1436-1, a court order vesting title in "C" might be accepted 

by the Department as evidence of title. It is difficult if not impossible, however, to render any opinion upon this fact situation other than 

the deoision that the certificate of title should riot be issued to "C" 

under the facts set forth. ff "C" is dissatisfied withths ruling of the 

Department, he may appeal under Section 39. Then if the final decision 

is against the ruling of the Department, the oertificate of title shall 

be issued. If it is sustaining the a&ion of the Department, the Department may then prescribe reasonable rules and regulations for its issuance. 

It is the opinion of this Department that the Department of 

Public Safety should refuse issuanoe of a certificate of title to "C" in 

the faat situation quoted until it becomes apparent that he is entitled 

to its issuance by reason of having complied with the provisions of the 

certificate of title a&. 

Opinions Na. O-2693 and IBO. O-2100 are upon similar fact aituations, and's copy of each is enclosed herewith. 

Yours very truly 

APPROVED DEC 6, 1940 

/s/ R.W. Fairchild ATTORNEYGEWRALOFTEW 

Xc&g 

ATTORNEY GEWLRAL OF TEXAS By /s/ Ross Carlton 

Ross Carltcn 

Assistant 

RC:ew:egw 

Approved 

Opinion Committee 

ByBWB 

Chairman