                                           The Attorney          General of Texas
                                                            March 22, 1982
MARK WHITE
Attorney General

                                         Mr. Charles D. Travis                  Opinion No. MW-458
Supreme      Court SUildinQ              Executive Director
P. 0. Box 12546
                                         Texas Parks and Wildlife Department    Re:       Application   for
Austin, TX. 76711. 2546
5121475-2501
                                         4200 Smith School Road                 certificate of title under
Telex    910/874.1367                    Austin, Texas   78744                  section 31.047 of the Parks
Telecopier      5121475-0266                                                    and Wildlife Code

                                         Dear Mr. Travis:
1607 Main St., Suite 1400
Dallas, TX. 75201.4709
2141742-6944                                  You have asked us to determine what evidence should be required
                                         by the Texas Parks and Wildlife Department to establish whether an
                                         applicant for a motorboat certificate of title is entitled to such
4624 Alberta       Ave., Suite     160
                                         certificate, where said applicant is a possessary lienholder who has
El Paso, TX.       799052793
9151533.3464
                                         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
1220 Dallas Ave., Suite           202    notified those lienholders noted on the certificate of title of his
Houston,   TX. 77002-6966
                                         intent to foreclose.
7 131650-0666

                                              Article XVI, section 37 of the Texas Constitution provides that
606 Broadway,         Suite 312          mechanics, artisans and materialmen shall have a lien upon articles
Lubbock.  TX.       79401-3479           repaired by them for the value of labor or materials furnished
6061747.5236
                                         therefore. The constitution also states that "the Legislature shall
                                         provide by law for the speedy and efficient enforcement of said
4309 N. Tenth. Suite S                   liens." The constitutional provision is self-executing, and the lien
McAllen,     TX. 76501-1665              created between the owner and laborers and materialmen who contract
5121662-4547                             directly with him does not depend on statutory provisions. Hayek v.
                                         Western Steel Company, 478 S.W.Zd 786 (Tex. 1972).
 200 Main Plaza, Suite 400
 San Antonio,  TX. 76205-2797                 Article 5503, V.T.C.S.. gives a possessory lien to persons who
 512/225-4191                            have repaired any article until the cost of repairs have 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
 An Equal       OppOrtUnitYI
 Affirmative      Action   Employer      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
                                         for notice to othef lienholders. Compare V.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 lienholders of liens recorded on 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 created pursuant to article 5503, V.T.C.S.,




                                                                  p. 1592
Mr. Charles D. 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, subchapter B-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 content of an application.

     Section 31.047(c) requires that the application be accompanied by
"evidence reasonably required by the department to establish that the
applicant... is entitled to a certificate of title." Such evidence
may include:

          (1)    a certificate of title issued by another
                 state or jurisdiction;

          (7-j   a manufacturer's or importer's certificate;

          (3)    a bill of sale, assignment, or contract;

          (4)    a promissory note;

          (5)    a security agreement;

          (‘3)   an invoice;

          (7)    a bill of lading;

          (8)    an affidavit;

          (9)    a   probate or       heirship    proceeding   or
                 information;

          (10) a judgment of          a   court    of   competent
               jurisdiction; or

          (11) other documents.

See also Parks and Wildlife Code 931.047(b)(6) (application form must
contain other information showing ownership of motorboat or security
interest therein).

     Thus, pursuant to section 31.047(c), the department may require
evidence to establish ownership of the motorboat and to establish that
the applicant is entitled to a title certificate. The department may
require evidence that the rights of other lienholders are protected.




                                  p. 1593
.   -


        Mr. Charles D. Travis - Page 3     (MW-458)




        See Attorney General Opinion O-3867 (1941); see generally Attorney
        General Opinion H-905 (1976).

             Moreover, where an applicant seeks transfer of title, section
        31.049(e) of the Parks and Wildlife Code provides that "[tlitle may 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 surrendered as required before a new title may be issued.

              The requirement imposed by section 31.049(e) of the code imposes
         a hardship on the purchaser of the boat where the owner of the boat
         cannot be located. In other 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 (motor vehicles). Sections 31.021 through
         31.042 of the Parks and Wildlife Code provide that the department give
         all undocumented motorboats a "certificate of number," including those
        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
         issuance of a new certificate of title to someone who 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.
        -See Parks and Wildlife Code 531.051.
                                     SUMMARY

                       The department must 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 lienholder who has
                  foreclosed on the boat pursuant to article 5504,
                  V.T.C.S.. such application must be accompanied by
                  evidence establishing ownership of the boat and
                  the applicant's right to certificate. Where the
                  applicant seeks transfer of title, the original
                  title properly endorsed to show the transfer must
                  be surrendered.




                                               -MARK       WHITE
                                                 Attorney General of Texas

        JOHN W. FAINTER, JR.
        First Assistant Attorney General



                                           p. 1594
                                           .,   .

Mr. Charles D. Travis - Page 4   W-458)




RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger




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