The Attorney General of Texas 

March 22, 1982 

MARK WHITE 

Attorney General 

Supreme Court SUildinQ 

P. 0. Box 12546 

Austin, TX. 76711. 2546 

5121475-2501 

Telex 910/874.1367 

Telecopier 5121475-0266 

1607 Main St., Suite 1400 

Dallas, TX. 75201.4709 

2141742-6944 

4624 Alberta Ave., Suite 160 

El Paso, TX. 799052793 

9151533.3464 

1220 Dallas Ave., Suite 202 

Houston, TX. 77002-6966 

7 131650-0666 

606 Broadway, Suite 312 

Lubbock. TX. 79401-3479 

6061747.5236 

4309 N. Tenth. Suite S 

McAllen, TX. 76501-1665 

5121662-4547 

200 Main Plaza, Suite 400 

San Antonio, TX. 76205-2797 

512/225-4191 

An Equal OppOrtUnitYI 

Affirmative Action Employer 

Mr. Charles D. Travis Opinion No. MW-458 

Executive Director 

Texas Parks and Wildlife Department Re: Application for 

4200 Smith School Road certificate of title under 

Austin, Texas 78744 section 31.047 of the Parks 

and Wildlife Code 

Dear Mr. Travis: 

You have asked us to determine what evidence should be required 

by the Texas Parks and Wildlife Department to establish whether an 

applicant for a motorboat certificate of title is entitled to such 

certificate, where said applicant is a possessary lienholder who has 

foreclosed upon the motorboat pursuant to article 5504, V.T.C.S., 

because of unpaid storage or repair charges. In particular, you wish 

to know whether you may require the applicant to show that he has 

notified those lienholders noted on the certificate of title of his 

intent to foreclose. 

Article XVI, section 37 of the Texas Constitution provides that 

mechanics, artisans and materialmen shall have a lien upon articles 

repaired by them for the value of labor or materials furnished 

therefore. The constitution also states that "the Legislature shall 

provide by law for the speedy and efficient enforcement of said 

liens." The constitutional provision is self-executing, and the lien 

created between the owner and laborers and materialmen who contract 

directly with him does not depend on statutory provisions. Hayek v. 

Western Steel Company, 478 S.W.Zd 786 (Tex. 1972). 

Article 5503, V.T.C.S.. gives a possessory lien to persons who 

have repaired any article until the cost of repairs have been paid in 

full. Article 5504, V.T.C.S.. provides that upon the elapse of sixty 

days without payment of the charges, the possessory lienholder shall 

notify the owner to pay the charges. If payment is not made, the 

property may be sold at public sale. There is no express provision 

for notice to othef lienholders. Compare V.T.C.S. art. 5504a (written 

notice of charges on motor vehicle subject to article 6687-1, 

V.T.C.S., must be made to lienholders of liens recorded on certificate 

of title). Article 5506, V.T.C.S., provides that "[nlothing in this 

title shall... in any manner affect or impair other liens arising at 

common law or in equity, or by any statute of this State...." 

However, an artisan's lien created pursuant to article 5503, V.T.C.S., 

p. 1592 
Mr. Charles D. Travis - Page 2 (MW-458) 

takes priority over a perfected security interest. Tex. Bus. 8 Comm. 

Code 59.310; Gulf Coast State Bank v. Nelms, 525 S.W.Zd 866 (Tex. 

1975). 

Chapter 31, subchapter B-l of the Texas Parks and Wildlife Code 

establishes the statutory scheme governing the issuance of 

certificates of title to motorboats sold and possessed in Texas. 

Section 31.045 of the code establishes the Texas Parks and Wildlife 

Department as the issuing agency for such certificates of title. 

Section 31.046 designates the individuals who must apply to the 

department for such a certificate. Section 31.047 controls the form 

and content of an application. 

Section 31.047(c) requires that the application be accompanied by 

"evidence reasonably required by the department to establish that the 

applicant... is entitled to a certificate of title." Such evidence 

may include: 

(1) 

(7-j 

(3) 

(4) 

(5) 

(‘3) 

(7) 

(8) 

(9) 

(10) 

(11) 

a certificate of title issued by another 

state or jurisdiction; 

a manufacturer's or importer's certificate; 

a bill of sale, assignment, or contract; 

a promissory note; 

a security agreement; 

an invoice; 

a bill of lading; 

an affidavit; 

a probate or heirship proceeding or 

information; 

a judgment of a court of competent 

jurisdiction; or 

other documents. 

See also Parks and Wildlife Code 931.047(b)(6) (application form must 

contain other information showing ownership of motorboat or security 

interest therein). 

Thus, pursuant to section 31.047(c), the department may require 

evidence to establish ownership of the motorboat and to establish that 

the applicant is entitled to a title certificate. The department may 

require evidence that the rights of other lienholders are protected. 

p. 1593 
. - 

Mr. Charles D. Travis - Page 3 (MW-458) 

See Attorney General Opinion O-3867 (1941); see generally Attorney 

General Opinion H-905 (1976). 

Moreover, where an applicant seeks transfer of title, section 

31.049(e) of the Parks and Wildlife Code provides that "[tlitle may be 

transferred only by surrender of the original certificate of title 

properly endorsed ;o show the transfer.w - In such cases, the title 

must be surrendered as required before a new title may be issued. 

The requirement imposed by 

a hardship on the purchaser of 

cannot be located. In other 

section 31.049(e) of the code imposes 

the boat where the owner of the boat 

statutes, the legislature has made 

express provision for issuance of a new certificate of title when 

ownership of registered property is involuntarily transferred. 

V.T.C.S. art. 6687-1, §35 (motor vehicles). Sections 31.021 through 

31.042 of the Parks and Wildlife Code provide that the department give 

all undocumented motorboats a "certificate of number," including those 

boats which have a certificate of title. A person who acquires 

ownership of a vessel by an involuntary divestiture of ownership 

formerly could apply for a certificate of number pursuant to section 

31.036 of the Parks and Wildlife Code. See Acts 1971, 62d Leg., ch. 

971, §5, at 2931. However, no comparab~provision exists for the 

issuance of a new certificate of title to someone who purchases a boat 

under article 5504, V.T.C.S. Of course, in a particular case, the 

courts might order the department to replace a missing certificate. 

- See Parks and Wildlife Code 531.051. 

SUMMARY 

The department must adhere to section 31.047, 

V.T.C.S., in requiring information establishing 

the right of an applicant for a motorboat 

certificate of title to said certificate. Where 

the applicant is a possessory lienholder who has 

foreclosed on the boat pursuant to article 5504, 

V.T.C.S.. such application must be accompanied by 

evidence establishing ownership of the boat and 

the applicant's right to certificate. Where the 

applicant seeks transfer of title, the original 

title properly endorsed to show the transfer must 

be surrendered. 

-MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

p. 1594 
., . 

Mr. Charles D. Travis - Page 4 W-458) 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Susan L. Garrison 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Patricia Hinojosa 

Jim Moellinger 

p. 1595