                                ATTORNEY GENERAL OF TEXAS
                                             GREG        ABBOTT




                                                 March 15,2010



Mr. Victor T. Vandergriff, Chair                       Opinion No. GA-0761
Texas Department of Motor Vehicles
4000 Jackson Avenue, Building I                        Re: Authority of a magistrate to award ownership or
Austin, Texas 78731                                    title of a motor vehicle under chapter 47, Code of
                                                       Criminal Procedure, or other law (RQ-0811-GA)

Dear Mr. Vandergriff:

       You have requested that we answer questions submitted by Amadeo Saenz, Jr., Executive
Director, Texas Department of Transportation (the "TxDOT").l On November 1,2009, the division
with authority over motor vehicle title matters was transferred from the TxDOT to the newly created
Texas Department of Motor Vehicles (the "TxDMV") and thus, the subject matter of this request
concerns the TxDMV rather than the TxDOT.

        Mr. Saenz asked about the authority of a justice of the peace or a municipal judge under Code
of Criminal Procedure, chapter 47, as well as the authority of a justice of the peace under
Government Code section 27.031 to award title or ownership of a motor vehicle. 2 Mr. Saenz also
asked whether the TxDOT3 may issue a new certificate of title for a motor vehicle upon receipt of
a court order from a justice or municipal court. Request Letter at 2. We understand these questions
arise because of section 501.074(a)(4) of the Certificate of Title Act4 which provides as follows:

                  The [D]epartment shall issue a new certificate of title for a motor
                  vehicle registered in this state for which the ownership is transferred
                  by operation of law, including by inheritance, devise or bequest,
                  bankruptcy, receivership, judicial sale, or other involuntary
                  divestiture of ownership after receiving ... a court order . ...



       1See Letter from Jennifer Soldano, Legal Counsel, Tex. Dep't of Motor Vehicles, at 1 (on file with the Opinion
Committee).

          2See Letter from Amadeo Saenz, Jr., Executive Director, Tex. Dep't ofTransp., at 1 (July 10,2009) (available
at http://www.texasattomeygeneral.gov) ("Request Letter").

         3We understand his question is now relevant to the TxDMV.

         4Telephone conference with Jennifer Soldano, Tex. Dep't of Transp. (Sept. 14,2009).
Mr. Victor T. Vandergriff - Page 2                     (GA-0761)



TEx. TRANSP. CODE ANN. § 501.074(a)(4) (Vernon 2007) (emphasis added); id. §§ 501.001(3)
(Vernon Supp. 2009) (setting out short title), 501.002 (defining "Department" for purposes of
chapter 501 to mean the TxDMV).

        Chapter 47 of the Code of Criminal Procedure governs the disposition of allegedly stolen
property. TEx. CODE CRIM. PROC. ANN. arts. 47.01-.12 (Vernon 2006 & Supp. 2009). Mr. Saenz
specifically raised articles 47.01 a(a) and 47.02, and thus it is these provisions upon which we focus.
See Request Letter at 1-2. Article 47.01 a(a) relates to the restoration of property when no criminal
action is pending; it provides that

                  [i]f a criminal action relating to allegedly stolen property is not
                  pending, a ... justice of the peace having jurisdiction as a magistrateS
                  in the county in which the property is held or a municipal judge
                  having jurisdiction as a magistrate in the municipality in which the
                  property is being held may hold a hearing to determine the right to
                  possession of the property, upon the petition of an interested person,
                  a county, a city, or the state.... The court shall:

                          (1) order the property delivered to whoever has the superior
                  right to possession, without conditions; or

                          (2) on the filing of a written motion before trial by an
                  attorney representing the state, order the property delivered to
                  whoever has the superior right to possession, subject to the condition
                  that the property be made available to the prosecuting authority
                  should it be needed in future prosecutions; or

                          (3) order the property awarded to the custody of the peace
                  officer, pending resolution of criminal investigations regarding the
                  property.

TEx. CODE CRIM. PROC. ANN. art. 47.01a(a) (Vernon 2006) (footnote added).

         Article 47.02 relates to the restoration of property when a criminal action is pending. See
id art. 47.02(b) (Vernon Supp. 2009). The Eighty-first Legislature amended article 47.02. See Act
of May 26,2009, 81st Leg., R.S., ch. 613, § 2,2009 Tex. Gen. Laws 1397, 1397 (codified as an
amendment to TEx. CODECRIM. PRoc.ANN. art. 47.02 (Vernon Supp. 2009)). Article 47.02(b) now
provides that

                  [o]n written consent of the prosecuting attorney, any magistrate
                  having jurisdiction in the county in which a criminal action for theft
                  or any other offense involving the illegal acquisition of property is


         5See Tex. Att'y Gen. Op. No. GA-0426 (2006) at 1-5 (containing a general discussion of the officers that serve
as magistrates and the powers and duties of magistrates).
Mr. Victor T. Vandergriff - Page 3                        (GA-0761)



                   pending may hold a hearing to determine the right to possession of
                   the property. If it is proved to the satisfaction of the magistrate that
                   any person is a true owner of the property alleged to have been stolen,
                   and the property is under the control of a peace officer, the magistrate
                   may, by written order, direct the property to be restored to that person.

TEx. CODE CRIM. PROC. ANN. art. 47.02(b) (Vernon Supp. 2009).

        We begin our analysis by considering whether article 47.01a(a) authorizes a justice of the
peace or a municipal judge to award title or ownership of a motor vehicle. Intermediate appellate
courts have offered differing interpretations ofthe jurisdiction of a court under article 47.01 a(a). The
Eastland Court of Appeals has stated that "[a]rticle 47.01a(a) gives the justice court a limited
jurisdiction to determine the rightto possession of the property only.... The justice court [has] no
jurisdiction to determine ownership of the [vehicle]." Perry v. Breland, 16 S.W.3d 182, 189 (Tex.
App.-Eastland 2000, pet. denied); see also Universal Underwriters Group v. State, 283 S.W.3d
897,900 (Tex. App.-Houston [14th Dist.] 2009, no pet.) ("[U]nder article 47.01a, the trial court
determines 'superior right to possession,' rather than ownership.").

        In contrast, the Dallas Court of Appeals, in an unpublished opinion,6 held that a municipal
court had jurisdiction to determine ownership as well as the right to possession of a vehicle under
article 47.01a. Allstate Ins. Co. v. Troy's Foreign Auto Parts, No. 05-00-01239-CV, 2001 WL
840613, at *3 (Tex. App.-Dallas July 26, 2001, pet. denied) (not designated for publication) (citing
Am. Fire & Indem. Co. v. Jones, 828 S.W.2d 767, 769 (Tex. App.-Texarkana 1992, writ denied»;
cf Yorkv. State, 298 S.W.3d 735,751 &n.13 (Tex. App.-Fort Worth 2009, pet. filed) (stating that
article 47.01a ensures that "vehicles are returned to their rightful owners if those owners can be
ascertained" and that article 47.01 a "does not require that ownership be conclusively proved to return
property, only that the interested party show a 'superior right to possession"'). The court reached
this conclusion by reading article 47.01a(a) in conjunction with article 47.04.7 Allstate, 2001 WL
840613, at *3 ("Article 47.04 provides the court with the power to direct the property be restored to
the owner."); cf York, 298 S.W.3d at 751 (citing article 47.04 as support for the statement that a
47.01 a proceeding works to ensure that "vehicles are returned to their rightful owners ifthose owners
can be ascertained").


         ~'Opinions and memorandum opinions designated 'do not publish' under these rules by the court of appeals
prior to January 1, 2003 have no precedentia1 value but may be cited with the notation, '(not designated for
publication).'" TEx. R APP. P. 47.7(b).
          7Article 47.04 provides that "[u]pon an examining trial, if it is proven to the satisfaction of the court that any
person is the true owner of property alleged to have been stolen, and which is in possession of a peace officer, the court
may upon motion by the state, by written order direct the property to be restored to such owner . ..." TEx. CODE CRIM.
PROC. ANN. art. 47.04 (Vernon 2006) (emphasis added). The term "examining trial" is not defined in chapter 47.
However, case law discussing a predecessor statute to article 47.01a indicates that a magistrate conducts an examining
trial under 47.01a. See Murray v. Lyons, 95 S.W. 621, 621-22 (Tex. Civ. App.-San Antonio 1906, no writ) ("[I]t
became the duty of the officer, after taking charge of the property, to hold it subject to the order of the magistrate at the
examining trial, or of the court trying the accused on the charge of the theft."); see also TEx. CODE CRIM. PROC. ANN.
art. 2.11 (Vernon 2005) ("When the magistrate sits for the purpose of inquiring into a criminal accusation against any
person, this is called an examining court.").
Mr. Victor T. Vandergriff - Page 4                        (GA-0761)



        Because of the contrary statements of the intermediate appellate courts regarding a court's
jurisdiction under article 47.01a(a), we cannot predict with any certainty whether a court would
conclude that article 47.01a(a) authorizes ajustice of the peace or a municipal judge to award title
or ownership of a motor vehicle.

        We next consider whether article 47.02 authorizes a justice of the peace or a municipal judge
to award title or ownership of a motor vehicle. The language of articles 47.01 a(a) and 47. 02(b) are
similar in some respects and different in others. Compare TEX. CODE CRIM. PROC. ANN. art.
47.01 a(a) (Vernon 2006), with id art. 47. 02(b) (Vernon Supp. 2009). We examine those similarities
and differences more closely.

        Article 47.02(b), as recently amended, authorizes "a hearing to determine the right to
possession of the property." See Act of May 26,2009, 81st Leg., R.S., ch. 613, § 2, 2009 Tex. Gen.
Laws 1397, 1397 (codified as an amendment to TEx. CODE CRIM. PROC. ANN. art. 47.02 (Vernon
Supp.2009)). As discussed above, some courts have interpreted this same language, when used in
article 47.01a(a), as limiting the jurisdiction of a court operating under. article 47.01a(a) to the
determination of the right to possession and not ownership. See Perry, 16 S.W.3d at 189. Thus, a
court might conclude from the addition of this language into article 47.02(b) that a judge has
similarly limited authority to determine a right to possession and not title or ownership under article
47.02(b).

         However, in addition to authorizing a hearing to determine a right to possession to property,
article 47. 02(b) provides that if, at the hearing, "it is proved to the satisfaction of the magistrate that
any person is a true owner of the property alleged to have been stolen, ... the magistrate may, by
written order, direct the property to be restored to that person." TEx. CODE CRIM. PROC. ANN. art.
47.02(b) (Vernon SUpp. 2009) (emphasis added).8 This stands in contrast to article 47.01a(a), which
only authorizes the court to order the property delivered to a person who has a superior right to
possession. Id. art. 47.01a(a)(1)-(2) (Vernon 2006).

         Article 47.02' s language (1) that the person who is the "true owner" of the property may be
proven and (2) that the magistrate may direct property be restored to the true owner could be
construed by a court as authorization to determine title or ownership. Even if the "true owner"
language is not in itself sufficient, a court could use the reasoning employed by the court in some
article 47.01a(a) decisions. See Allstate, 2001 WL 840613, at *3. As discussed above, courts have
read article 47.01a(a) in conjunction with article 47.04 to conclude that a judge in a 47.01a(a)
proceeding has authority to determine title or ownership. See discussion supra pages 3-4. A court
could similarly read article 47.02(b) in conjunction with article 47.04 to find ajudge in a 47.02(b)
proceeding has authority to determine title or ownership.




         8In this way, the magistrate under article 47 .02(b) has the same authority to issue an order restoring the property
to the owner as does the judge of the court under article 47 .02(a) who is trying a criminal action for theft. Compare TEx.
CODE CRIM. PROC. ANN. art. 47.02(a) (Vernon Supp. 2009), with id. art. 47.02(b).
Mr. Victor T. Vandergriff - Page 5                         (GA-0761)



          While the "true owner" language in article 47 .02(b), whether read in conjunction with article
47.04 or read alone, could support the conclusion that a justice of the peace or a municipal judge has
authority to award title or ownership of a motor vehicle, we cannot conclusively state that a justice
of the peace or a municipal court judge has such authority. In sum, while there would be some basis
for concluding that article 47. 02(b) authorizes a justice of the peace or a municipal judge to award
title or ownership of a motor vehicle, we cannot with confidence advise whether a court would reach
such a conclusion.

         We next consider Mr. Saenz's inquiry as to the authority of a justice of the peace to award
title or ownership of a motor vehicle through the enforcement of a lien under Government Code
section 27.031. 9 Request Letter at 1. Section 27.031 provides, in relevant part, that "[i]n addition
to the jurisdiction and powers provided by the constitution and other law, the justice court has
original jurisdiction of ... foreclosure of mortgages and enforcement of liens on personal property
in cases in which the amount in controversy is otherwise within the justice court's jurisdiction."
TEx. GOV'T CODE ANN. § 27.031(a)(3) (Vernon Supp. 2009). Mr. Saenz requested that we assume,
in answering this question, that the amount in controversy is within the court's jurisdiction. See
Request Letter at 2 ("Assuming the vehicle at issue is not valued at more than $10,000, mayajustice
of the peace award possession and title of the vehicle?"). 10

       A lienholder can enforce his or her lien by a judicial procedure to foreclose the lien. A Texas
court has explained that the term "foreclosure"

                   means a proceeding in court, or out of court, when provided for by a
                   valid contract, to subject the property (or part thereof) covered by a
                   lien to the payment of the debt secured by the lien. It has the effect
                   of extinguishing all right, title or interest, if any, of the defendants in
                   the property.

Sw. Peanut Growers Ass'n v. Womack, 179 S.W.2d 371, 373 (Tex. Civ. App.-Eastland 1944, no
writ); see also Thomas v. Price, 718 F. Supp. 598,607 n.67 (S.D. Tex. 1989) ("Foreclosure is a
process by which a pledgor of personal property is deprived of his interest therein.").




          9We assume, for purposes ofthis opinion, that the personal property at issue is not exempt from creditors' claims
under chapter 42 of the Property Code. See TEX. PROP. CODE ANN. § 42.002(a)(3), (4), (9) (Vernon 2000) (providing
that certain vehicles constitute exempt personal property); see also id § 42.002(b) (providing that certain security
interests and liens fixed by law on personal property may not be avoided on the ground that the property is exempt under
chapter 42).

           I°Article V, section 19 of the Texas Constitution provides ajustice of the peace court "exclusive jurisdiction"
in a civil matter "where the amount in controversy is two hundred dollars or less," as 'Well as "such other jurisdiction"
as the Legislature may provide. TEx. CONST. art. V, § 19. Government Code section 27.031(a)(I) expands the justice
court's original jurisdiction in civil matters to cases in which neither the district nor the county court has jurisdiction and
"the amount in controversy is no more than $10,000, exclusive of interest." TEx. Gov'r CODE ANN. § 27.031(a)(1)
(Vernon Supp. 2009). This jurisdiction is cumulative of jurisdiction provided by other law. Id. § 27.031(a).
Mr. Victor T. Vandergriff - Page 6              (GA-0761)



        While the term foreclosure often contemplates a foreclosure sale ofthe collateral, that would
not be the case when the contract under which the parties are operating provides otherwise. See CVN
Group, Inc. v. Delgado, 95 S.W.3d 234, 247 (Tex. 2002), (explaining that a mechanic's lien is
foreclosed '" on judgment of a court of competent jurisdiction foreclosing the lien and ordering the
sale of the property subject to the lien'" whereas "mortgages and other contract liens, ... may be
enforced in any manner provided by the contract"); Ley v. Houston, 665 S.W.2d 178, 180 (Tex.
App.-Houston [1st Dist.] 1983, writ refd n.r.e.) ("We recognize that the term 'foreclosure'
generally contemplates a foreclosure sale of the collateral. However, that does not mean that an
actual foreclosure sale must be held in every circumstance, and we must determine the rights of the
parties according to the terms of their particular contract."). Moreover, there are foreclosure
proceedings that give the mortgagee title to the mortgaged property without first conducting a sale.
See, e.g., TEx. Bus. & COM. CODE ANN. §§ 9.620, cmt. 2 (Vernon 2002) (providing for strict
foreclosure, a procedure by which a secured party acquires the debtor's interest in the collateral
without the need for a sale), 9.622 (explaining effect of acceptance of collateral). Thus, depending
upon the foreclosure proceeding at issue, we conclude that a justice court could award title or
ownership of a motor vehicle in enforcing a lien.

        Assuming that a justice court or municipal court can award title or ownership of a motor
vehicle, Mr. Saenz asked ''whether the [D]epartment may accept the court order from a justice of the
peace [or] the municipal court" as the basis for issuing a new certificate of title. Request Letter at
2. We return to the language of section 501.074(a)(4) of the Certificate of Title Act:

                The [D]epartment shall issue a new certificate of title for a motor
                vehicle registered in this state for which the ownership is transferred
                by operation of law, including by inheritance, devise or bequest,
                bankruptcy, receivership, judicial sale, or other involuntary
                divestiture of ownership after receiving ... a court order ....

TEx. TRANSP. CODE ANN. § 501.074(a)(4) (Vernon 2007). Nothing in the express language of
section 501.074(a)(4) excepts a court order from a justice or municipal court from serving as the
basis for issuance of a new certificate of title by the TxDMV under section 501.074(a)(4). See id.;
see also Lelandv. Brandal, 257 S.W.3d 204,206 (Tex. 2008) (explaining that a court looks first to
a statute's language because it is assumed "'that the Legislature tries to say what it means, and
therefore the words it chooses should be the surest guide to legislative intent"') (quoting Fitzgerald
v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864,866 (Tex. 1999». Thus, we conclude that
the TxDMV may, under section 501.074(a)(4), accept a court order from ajustice or municipal court
in carrying out its duty to issue a new certificate of title for a motor vehicle, the ownership of which
has been transferred by operation of law.
Mr. Victor T. Vandergriff - Page 7            (GA-0761)



                                       SUMMARY

                       Because of the differing statements intermediate appellate
               courts have made regarding a court's jurisdiction under article
               47.01 a(a), we cannot predict with any certainty whether a court would
               conclude Code of Criminal Procedure articles 47.01 a(a) and 47 .02(b)
               authorize a justice of the peace or a municipal judge to award title
               or ownership of a motor vehicle. However, depending upon the
               foreclosure proceeding at issue, we conclude that a justice court could
               award title or ownership of a motor vehicle in enforcing a lien under
               Government Code section 27.031.

                      The Texas Department of Motor Vehicles may, under section
              501.074(a)(4) of the Transportation Code, accept a court order from
              a justice or municipal court in carrying out its duty to issue a new
              certificate of title for a motor vehicle, the ownership of which has
              been transferred by operation of law.

                                              Very truly yours,




ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Christy Drake-Adams
Assistant Attorney General, Opinion Committee
