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: Issuanceof Certificate of Title under facts set forth.

We acknowledgereceipt of your letter of October 31, 1940, in which you request the opinion of this Departmentupon the following fact situations

"IAt cwns an automobileand has a Certificate of Title issued by the Department of Public Safety. 'Elpurchases this motor vehicle frcm ‘A* and does not require 'A'to deliver to him the assigned title and does not file an applicationfor 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 Certificateof 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 situationabove quoted are inviolation of Article 1436-1Vernon's Annotated Penal Code of Texas which is the Certificateof Title Act. Seotion 53 of this Act provides that:

"All salesmade inviolation of thisAct shall bevoid and no title shall pass until the provisions of this Act have been ccmpliedwith."

Under these circumstancesit is the duty of the Deparhnent of public Safety to refuse issuance of a CsritificateofTitle under the authority of Section 38, the pertinentprovision of which reads as follows:
"(a) That the applicationcontains 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 certificateof title under this Act."

Section 39 of the Act sets cut the procedure for appeal from
an adverse decision of the Departmentand provides that in theevent the Department's ruling is sustainedthat a certificateof title for the particularmotor vehicle involvedwill be issued only upon suchreasonable rules and regulationsas may be prescribed by the Department. Section 55Hon. Homer Garrison, Jr., page 2 (O-2878)

of the Act gives the Departmentauthority to promulgate such reasonable rules and regulations a8may 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 shouldbe required of the present owner inthis and similar oases in order that ha may be issued 8 certificateof title." We presume that by the term "presentowner" 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 certificateof title. Under Section 38, it is the duty of the Department to refuse issuance of the certificateuntil such time as provisions of theAct have been compliedwith, or until such time as it clearlyappears to the satisfactionof the Departmentthat "C" is entitled to the issuance of a certifiaate.

It is suggested that in lieu of ocmplianoewith the provisions of Article 1436-1, a court ordervesting title in "C"might be accepted by the Departmentas evidence of title. It is difficult if not impossible, however, to render any opinionupon 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 dissatisfiedwithths ruling of the Department,hemay appeal under Section 39. Then if the final decision is against the ruling of the Department, the oertificateof title shall be issued. If it is sustainingthe 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 issuanoeof a certificateof title to "C" in the faat situationquoted until it becomesapparent that he is entitled to its issuanceby reason of having complied withthe provisions of the certificateof 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