Can I get a replacement Texas boat title with an affidavit if the original is missing?

Texas AG Opinion JM-1219: Can Texas Issue a Replacement Boat Title from an Affidavit?

Plain-English summary

The Texas Parks and Wildlife Department asked whether it could issue a certificate of title for a motorboat based only on an affidavit, when the applicant could not produce the existing title endorsed by the seller. The Parks and Wildlife Code lets the department title motorboats, requires a buyer to apply for title within 20 days of a sale, and requires an application to include evidence that the applicant is entitled to a title.

The Attorney General drew a line based on why the title is missing. If the seller simply never surrendered the endorsed certificate of title to the buyer, then no transfer has occurred as far as the department is concerned, and the department has no authority to issue a new title to that buyer. The right fix in that situation is for the seller (the transferor) to get a replacement title and properly transfer it. But if the title was validly transferred to the buyer first and only later lost, stolen, or mutilated, the department can recognize the change in ownership, provided it has sufficient evidence that the transfer really happened.

Because affidavits are among the kinds of evidence the statute allows, the department could consider a purchaser's affidavit, but whether any particular affidavit is enough is a fact question for the department to decide in the first instance. The opinion added that a purchaser's affidavit standing alone, with nothing more, is unlikely to be sufficient evidence of the sale to justify issuing a title in the purchaser's name. So the bottom-line answer was that it depends on the facts of each case.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Who this opinion affected (as of 1990)

The Parks and Wildlife Department: The opinion told the department it had discretion, judged case by case, to decide whether the evidence supporting a replacement-title application was sufficient, and that a bare purchaser's affidavit would usually not be enough on its own.

Boat buyers who never received an endorsed title: For a buyer whose seller simply never handed over the endorsed certificate, the opinion meant the department could not issue them a title; the seller had to obtain a replacement and complete the transfer.

Boat buyers whose title was lost after transfer: For a buyer who did receive a properly transferred title that was later lost, stolen, or mutilated, the opinion recognized the department's authority to issue a replacement, so long as there was adequate proof the transfer had occurred.

Common questions

Can Texas Parks and Wildlife issue a boat title based just on an affidavit?
Sometimes, but not automatically. According to the opinion, affidavits are among the allowed forms of evidence, but whether a given affidavit is sufficient is a fact question for the department, and an affidavit from the buyer alone is unlikely to be enough.

What if the seller never gave me the signed-over title?
Then, under the opinion, no transfer has occurred as far as the department is concerned, and it cannot issue you a new title. The seller needs to get a replacement certificate and properly transfer it to you.

What if I got the title but then lost it?
The opinion said the department can issue a replacement in that situation, because the transfer already happened; the department just needs sufficient evidence that the transfer took place before the title was lost, stolen, or mutilated.

Background and statutory framework

Under the Parks and Wildlife Code, ownership of a motorboat other than a new one is shown by a certificate of title the department issues (§ 31.045); a purchaser must apply for title within 20 days of the sale (§ 31.046(a)); and the application must include information showing ownership and evidence that the applicant is entitled to title (§ 31.047). Section 31.049(e) provides that title may be transferred only by surrender of the original certificate properly endorsed to show the transfer, or by evidence of an involuntary transfer as defined in section 31.053, which sets out the exclusive methods for transferring ownership. The opinion cited Saulny v. RDY, Inc. and a prior opinion, MW-458 (1982), for the point that without surrender of the endorsed certificate, no transfer occurs as to the department.

The department is separately required to make regulations for replacing lost, stolen, or mutilated certificates (§ 31.051). Reading these provisions together, the opinion distinguished a title that was never transferred (where the transferor must obtain a replacement) from a title that was transferred and then lost (where the department may recognize the new ownership on sufficient proof). Because section 31.047(c)(5) lists affidavits among the acceptable forms of evidence, the department could weigh a purchaser's affidavit, but the opinion concluded that what counts as sufficient proof is a fact question for the department, and that a purchaser's affidavit alone would likely not be enough.

Citations

Statutes:

• Parks and Wildlife Code § 31.045 (ownership evidenced by certificate of title)
• Parks and Wildlife Code § 31.046(a) (application for title within 20 days of sale)
• Parks and Wildlife Code § 31.047 (evidence required with a title application)
• Parks and Wildlife Code § 31.047(c)(5) (affidavits as acceptable evidence)
• Parks and Wildlife Code § 31.049(e) (how title may be transferred)
• Parks and Wildlife Code § 31.051 (replacement of lost, stolen, or mutilated titles)
• Parks and Wildlife Code § 31.053 (exclusive methods of transferring ownership)

Cases:

• Saulny v. RDY, Inc., 760 S.W.2d 813 (Tex. App. - Corpus Christi 1988, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1219
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1219.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

September 11, 1990

Mr. Andrew Sansom
Executive Director
Texas Parks and Wildlife Department
4200 Smith School Road
Austin, Texas 78744

Opinion No. JM-1219

Re: Authority of the Parks and Wildlife Department to accept an affidavit in lieu of a certificate of title for a boat (RQ-2043)

Dear Mr. 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 § 31.045. A purchaser of a motorboat must apply for a certificate of title not later than 20 days after the sale. Id. § 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. Id. § 31.047.

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

Title may be transferred only by surrender of the original certificate of title properly endorsed 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 § 31.053 (setting out exclusive methods for transferring ownership of motorboats); Attorney General Opinion MW-458 (1982). In other words, if the seller does not surrender the certificate of title to the purchaser, no transfer has occurred, at least insofar as the department is concerned. Saulny v. RDY, Inc., 760 S.W.2d 813 (Tex. App. - Corpus Christi 1988, no writ). 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, mutilated certificates of title. Id. § 31.051. If a 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 id. § 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 a motorboat. Id. § 31.047(c)(5). What constitutes sufficient proof in any particular circumstances is a fact question and, in the first instance, a matter for the department to decide. 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

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General