# 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 7131650-0666

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. CharlesD. Travis OpinionNo. MW-458 ExecutiveDirector Texas Parks and WildlifeDepartment Re: Application for 4200 Smith SchoolRoad certificate of title under Austin, Texas 78744 section 31.047 of the Parks andWildlife Code DearMr. Travis: You have asked us to determinewhat evidence shouldbe 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 lienholderwho 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 lienholdersnoted on the certificate of title of his intent to foreclose. Article XVI, section 37 of the Texas Constitutionprovides 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 constitutionalprovision is self-executing,and the lien created between the owner and laborers and materialmen who contract directlywith him does not depend on statutoryprovisions. 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 repairedany article until the cost of repairshave 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 fornotice to othef lienholders. CompareV.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 lienholdersof liens recordedon 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 createdpursuant to article 5503,V.T.C.S.,

p. 1592Mr. CharlesD. 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, subchapterB-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 contentof an application. Section 31.047(c)requires that the applicationbe accompaniedby "evidence reasonably requiredby 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'sor importer'scertificate;

a bill of sale, assignment,or contract;
a promissorynote;
a securityagreement;
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) (applicationformmust contain other information showing ownership of motorboat or security interest therein). Thus, pursuant to section 31.047(c), the departmentmay require evidence to establishownershipof themotorboat and to establish that the applicant is entitled to a title certificate. The departmentmay require evidence that the rights of other lienholders are protected.

p. 1593. - Mr. CharlesD. Travis - Page 3 (MW-458)

See Attorney General Opinion O-3867 (1941); see generally Attorney General OpinionH-905 (1976). Moreover, where an applicant seeks transfer of title, section 31.049(e)of the Parks andWildlife Code provides that "[tlitlemay 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 surrenderedas requiredbeforea new titlemay be issued. The requirement imposedby 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 (motorvehicles). Sections 31.021 through 31.042of the Parks andWildlife Code provide that the departmentgive all undocumentedmotorboatsa "certificateof number," includingthose 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 issuanceof a new certificateof title to someonewho 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. SeeParks and Wildlife Code 531.051. - SUMMARY

The departmentmust 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 lienholderwho has foreclosed on the boat pursuant to article 5504, V.T.C.S.. such applicationmust be accompaniedby evidence establishing ownership of the boat and the applicant's right to certificate. Where the applicant seeks transfer of title, the original titleproperly endorsed to show the transfermust be surrendered.

-MARK WHITE Attorney Generalof Texas JOHNW. FAINTER,JR. FirstAssistantAttorneyGeneral

p. 1594., . Mr. CharlesD. Travis - Page 4 W-458)

RICHARD E. GRAY III ExecutiveAssistantAttorneyGeneral Preparedby Susan L. Garrison AssistantAttorneyGeneral APPROVED: OPINION COMMITTEE Susan L. Garrison, Chairman Jon Bible Rick Gilpin PatriciaHinojosa Jim Moellinger

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