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 Cer-
tificate 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 Anno-
tated Penal Code of Texas which is the Certificate of Title Act. Seo-
tion 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 au-
thority 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 par-
ticular 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 issu-
ance 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 impossi-
ble, however, to render any opinion upon this fact situation other than
the deoision that the certificate of title should riotbe 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 Depart-
ment 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 ait-
uations, 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
