                           September 11, 1990



    Mr. Andrew Sansom               Opinion No.   JM-1219
    Executive Director
    Texas Parks and Wildlife        Re:    Authority of the Parks
      Department                    and Wildlife   Department  to
    4200 Smith School Road          accept an affidavit in lieu
    Austin, Texas 78744             of a certificate of title for
                                    a boat  (RQ-2043)
    Dear Wr. Sansom:

         your predecessor asked us to render an opinion    about
    issuance of a new certificate of title for a motorboat  that
    is already covered by a certificate     of title when the
    applicant cannot produce the existing certificate of title
    endorsed by the transferor.   Specifically, you ask whether
    the Parks and Wildlife Department may issue a certificate of
-   title based on an affidavit in which the applicant  explains
    the missing certificate of title.

         The ownership   of a motorboat,    other than a     new
    motorboat, is evidenced by a certificate of title issued by
    the department.    Parks and Wildlife    Code 5 31.045.     A
    purchaser of a motorboat must apply for a certificate     of
    title not later than 20       days after the sale.       &J.
    5 31.046(a). An application for a certificate of title mUSt
    be accompanied by information showing ownership and evidence
    establishing that the applicant is entitled to a certificate
    of title. s. 5 31.047.

         Section 31.053 of the Parks and Wildlife Code governs
    the transfer of motorboats.  Section 31.049(e) provides as
    follows:

               Title ~~ay be transferred
                                 . .      onlv bv surrender
            of the oriainal certat==      of title or ooerlv
            aorsed   to show the transfer or by evidence
            of an involuntary    transfer as defined      in
            Subdivision (5) of Subsection (a) of Section
            31.053, as amended.    (Emphasis added.)

    See also Parks and Wildlife Code 5 31.053      (setting out
    exclusive methods for transferring ownership of motorboats);
C   Attorney General Opinion MW-458 (1982). In other words,    if




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Mr. Andrew Sansom - Page 2    (JM-1219)




the seller does not surrender the certificate of title to
the purchaser, no transfer has occurred, at least insofar as
the department is concerned. a     &~,&RY v. RDY. Inc     760
S.W.2d 813 (Tex. Ct. App.- Corpus Christi 1988, no 'Grit).
Therefore, in such circumstances, the department      has no
authority to issue a new certificate      of title to the
purchaser.  Attorney General Opinion MW-458 (1982).

     We note that the department       is required to make
regulations  regarding   replacement  of lost, stolen,
mutilitated certificates   of title. u.     5 31.051.   If ":
certificate  of title was not transferred       because   the
original was lost, stolen, or mutilated,      the transferor
should seek a replacement   certificate of title to transfer
to the purchaser.

     If the seller's certificate of title was lost, stolen,
or mutilated after it was transferred to the purchaser, then
the department would have authority to recognize the change
in ownership.   In order to issue a replacement   certificate
of title to the purchaser,       the department   would need
sufficient evidence that the transfer of the certificate    of
title took place. See &j. 5 31.047. Your question,       then,
is whether    the affidavit    of the purchaser    would    be
sufficient to show both that a transfer of the original
certificate of title occurred and that the original was
subsequently lost, stolen, or mutilated.      Affidavits   are
included among the items that may serve as evidence that a
person   is entitled to a certificate      of title    for
motorboat.  fi. 5 31.047(C)(S).   What constitutes sufficienz
proof in any particular circumstances is a fact question and
    in the first instance, a matter    for the department   to
iI;ide. We think it is unlikely, however, that an affidavit
of the purchaser, with nothing more, would be sufficient
evidence of the sales transaction   to justify issuance of a
certificate of title in the name of the purchaser.

                       SUMMARY


             Whether  the Department    of Parks and
        Wildlife may issue a replacement   certificate
        of title for a motorboat depends on the facts
        of each case.                 ,




                                  JIM     MATTOX
                                  Attorney General of Texas



                             p. 6446
Mr. Andrew Sansom - Page 13   (JM-1219)




MARYKELLER
First Assistant Attorney General

Lou MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RRNEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General




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