Mr. D. C. Greer                Opinion No. C-735
State Highway Engineer
Texas Highway Department       Re: Whether those portions
Austin, Texas                      of Sections 24 and ,35
                                   of the Certificate of
                                   Title Act, V.P.C.,
                                   1436-1, relating to
     .                             rights of survivor-
                                   ship agreements are
                                   unconstitutional?
Dear Mr. Greer:
          You have requested an opinion of this office on
the following question:
          "Are those portions of Section 24 and -35
     of the Certificate of Title Act, V.P.C. 1436-1,
     relating to rights of survivorship agreements
     unconstitutional?"
          Section 24 of Article 14X6-1, Vernon%    Penal
Code, provides in part:
           "The term 'Certificate of Title' means a
     written instrument which may be issued solely
     by .andunder the authorit of the department,
     (State Highway Department"Iand which must give
     the following data together with such other
     data as the department my require from time
     to time:
          II. . .

          "(j) A statement indicating 'rights of
     survivorship' when an agreement providing that
     the motor vehicle is to be held between a
    .husband and his wife jointly with the interest
     of either spouse who dies to survive to the
     surviving spouse is surrendered with the appli-
     cation for certificate of title. This agree-
     ment Is valid only if signed by both husband
    .and wife and, if signed, the certificate shall
                          -3551-
Mr. D. C. Greer, page 2 (C-735 -
     be issued in the name of both." As amended
     Acts 1965, 59th Leg., p.1514, ch.658, 81.
and Section 35 provides in part:
          "Whenever the ownership of a motor vehicle
     registered or licensed within this state is
     transferred by operation of law, as upon in-
     heritance, devise or bequest, bankruptcy, re-
     ceivership, judicial sale, or any other lnvolun-
     tary divestiture of .ownership, the department
     shall issue a new certificate of title upon being
     provide,dwith a certified copy of the order
     appointing a temporary administrator or of the
    -probate proceedings, or letters testamentary or
     of administration, if any . . . If an agreement
     providing for right of survivorship is signed
     by the husband and wife, upon the death of either
     spouse ttie department shall issue a new certificate
     of title to the surviving spouse upon being
     provided with a copy of the death certificate
     of the deceased~spouse."As amended Acts 1965,
     59th Leg., p.1514, ch.658, ~2.
                                                             .
          Section 46 of the Texas Probate Code prior to
its amendment in 1961 was similiar to the present sections
under consideration. That section prior to the 1961
amendment read as follows:
         "Where two or more persons hold an estate,
    real, personal, or mixed, jointly, and one joint
    owner dies before severance, his interest in
    said joint estate shall not survive to the re-
    maining joint owner or joint owners, but shall
    descend to, and be vested in, the heirs or legal
    representatives of such deceased joint owner in
    the same manner as if his interest.had been
    severed and ascertained. Provided, however,
    that by an agreement in writing of joint owners
    of 'property, the interest of any joint owner
    who dies may be made to survive to the surviving
    joint owner or joint owners but no such agree-
    ment shall be inferred from?the mere fact that
    the property is held in joint ownership,"
          Upon consideration of Section 46, the Court
in Hilley v, Hilley, 191 Tex. 569, 342 S.W.2d 565, (1961),
found that it was unconstitutional only insofar as it
attempted to effectuate a partition of community pro-
perty between spouses. The Court in that case held that
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                                                                 r
Mr. D. C. Greer, page 3 (C-735       )

 separate propertyof spouses may be the subject of joint
 tenancy between them.with:the rightof survivorship, but
snot community property
                                .~
            1n.a later case~upholding a 'jointtenancy be-
.tween spouses with right of survivorship, the Court in
 Davis v. East Texas Savings and,Loan Association, 163
 Tex 361, 35
           Jilley
               s.w.2 92
 case did not govern the'situatik where separate property
 was the subject of,the joint tenancy with right of sur'-
 vivorship. Also see Nix v. Davis, 358s.w.2d 225 (Tex.
 Civ. APP.  1962).
    .
          .The.recent case of Williams v. McKnight, 432
S.W.2d '535, (Tex..Sup. 1966), construed the lgbl amend-
ment to Section 26 of the Probate Code w~hichwas enacted
following the Hilley case. The amendment reads'as
follows:
             ,,~‘,
                  It is'~specifica~lly
                                     provided,that any
  ;.;.husband&    his wife may by written agreement
      createa jointestate ou't'of~theircommuriityp&-
    .~perty, with rights,of,survivorship."
             The Court held in part:
              ,"The amendme'ntattempts to authorize spouses
         to treat a jointestate with rights of survivor-
        ship 'out of their community property.' In Hilley,
        we stated ,the:,reasonsthat this result could~not
         constitutionally be accomplished, and those reasons
        are as va~lida.fterthe amendment as they were
        before. ..Constitutionallimitations are as binding
        'upon the Legislature as they are upon thenJudiciary!'
          In neither the Hilley case nor the Williams case
did the Court hold that the orovision orovidine:for the
creation of a joint tenancy with right-of survrvorship.as
provided in Section 46 was unconstitutional as to property
other than community property, To the contrary, both
cases recognize that spouses may create such a joint,ten-
ancy with rights of survivorship as lorigas they do not
use community property. The Williams.case held as uncon-
stitutional an amendment which authorized the spouses by
mere agreement to transmute community property into,,a
joint tenancy with right of survivorship. The amendment
was held wholly unconstituti,onalsince it applied strict-
ly to community property;' Consequently, Sections 24 and
35,of the Certificate of Title Act, as amended by Senate
                            ;3553-
 .   ..   .



          Mr. D. C, Greer, page 4 (C-735     )
          Bill 58, Acts of the 59th Legislature, Regular Session,
          1965, Chapter 658, applies to all classes of property.
          Senate Bill 58 is valid as applied to separate property.
          As applied to community property, it is only invalid inso-
          far as the amendment attempts to authorize spouses to
          create a joint estate with rights of survivorship out of
          their community property. This invalidity does not pre-
          vent the issuance of Certificates of Title containing
          the statements provided for therein, but merely prevents
          this method being used as an attempt to treat a joint
          estate with rights of survivorship out of community
          property.
                                 SUMMARY
                    Sections 24 and 35 of the Certificate of
              'Title Act as amended by Senate Bill 58 Acts of
               the 59th Legislature Regular Session' ig65
               Chapter 658 applies'to all classes of prop&rty.
               Senate Bill',58is valid as apnlied to separate
               property. As applied to community property, it
               is only invalid insofar as the amendiiient
                                                        attempts
               to authorize spouses to treat a joint estate with
               rights of survivorship out cf their community
-.             property. This invalidity does not prevent the
               issuance of Certificates of Title containing
               the statements provided for therein, but merely
               prevents this method being used as an attempt
               to create a joint estate with rights of survivor-
               ship out of-community property.
                                                 Very truly yours,
                                                 WAGGONER CARR
                                                 Attorney General
                                                 'By: Lb
                                                    ;R
          WA:dh:wy                                  Wade Anderson
                                                    Assistant
          APPROVED:
          OPINION COMMITTEE
          W..V. Geppert, Chairman
          Marietta Payne
          John Reeves
          W. 0. Shultz
          Terry Goodman
          APPROVED FOR THE ATTORNEY GENERAL
          BY: T. B. WRIGHT
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