The opinion
‘Ihe Honorable Jesse James Opinion No. H- 745
Treasurer, State of Texas
State Capitol Building Re: Procedure for return to
Austin, Texas 78711 insurance companies of
matured securities filed
as collateral with the
Dear Mr. James: State Treasurer.
You have requested our opinion concerning your authority to utilize
certain procedures with regard to the return of matured securities to an
insurance company upon instruction from the State Board of Insurance,
As required by the Insurance Code, the State Treasurer is the
custodian of various securities pledged by insurance companies. Ins.
Code art. 1. 10, 5 17(a); see arts. 3.15, 3.23, 8.05, 9.12, 14.10, 17.25,
19.06. Upon order of theommissioner of Insurance, the Treasurer
is to “release, transfer and deliver such deposit or deposits to the owner
as directed in said order.” Ins. Code art. 1.10, 5 17(e).
Due to the costs and risks involved in the transmission of the securities,
you have asked the, following questions:
(1) May the State Treasurer require insurance
companies making deposits to designate a local
agent to whom the securities can be delivered?
(2) May the State Treasurer or the Commissioner
of Insurance require insurance companies to deposit
only registered securities in his care?
(3) May the State,Treasurer deliver the securities
to the Board of Insurance for subsequent delivery
to the companies?
p. 3163
The Honorable Jesse James, page 2 (H-745)
While the State Treasurer has no expressly provided rule making
authority, he may exercise those powers necessary and proper to the
fulfillment of his statutory duties. Terre11 v. Sparks, 135 S. W. 519
(Tex. Sup. 1911); Corzelius v. Railroad Commission, 182 S. W. 2d 412
(Tex. Civ. App. --Austin 1944, no writ). The State Treasurer has the
statutory duty to deliver these securities. However, the legal delivery
of a document does not necessarily entail a manual delivery. Henry v.
Phillips, 151 S. W. 533 (Tex. Sup. 1912). The court in that case held
that the deposit of a deed with a bank constituted a sufficient delivery.
In Brown v. Rodgers, 248 S. W. 750 (Tex. Civ. App. --Amarillo 1923,
no writ), the court stated:
Any act or declaration on the part of the
grantor, denoting an intention to give a present
effect to the executed conveyance, is said to be
sufficient to constitute delivery. (citations
omitted) Thus leaving the deed with the notary
or an attorney, to be delivered to the grantee
when called for, delivery to the recorder for
registration with instructions to deliver to the
grantee when recorded, deposit in the post office
addressed to the grantee, and acts of such charac-
ter have been held sufficient to constitute delivery.
248 S. W. at 750.
See also, Tyler V. Bauguss, 148 S. W. 2d 912 (Tex. Civ. App. --Dallas
1941, writ dism’d. jdgmt. car. ); Wvcoff Warehouse, Inc. v. Public
Service Commission, 403 P. 2d 168 (Utah 1965).
Since article 1.10, section 17(e) is silent with respect to the manner
of delivery, it is our view that reasonable procedures may be adopted
for the delivery of the securities. Accordingly, while we do not believe
the designation of a local agent may be required, in our opinion it may
be indicated that delivery will be made in Austin, Texas, to the owner
or his authorized representative.
Your second question is whether companies may be required to deposit
only registered securities. Article 1.10, section 17(a) and article 3.15 of
the Insurance Code require only that the securities governed thereby be
legal investments of the companies. Articles 8.05 and 19.06 require only
p. 3164
The Honorable Jesse James, page 3 (H-745)
that the securities be one of those listed in article 2.10. See also
Ins. Code arts. 9.12, 9.18. Only article 14.10 regarding mutual
assessment companies and article 17.25 regarding county mutual
companies do not~definitively provide which securities are acceptable.
Those statutes allow “convertible securities subject to approval of the
Board” of Insurance to be deposited. In our view where the type of
securities is expressly limited by statute, neither the Treasurer nor
the Commissioner of Insurance may require these securities to be
registered, for powers may not be implied where a statute is explicit
on the point in question. Creager v. Hidalgo County Water Improvement
Dist. No. 4, 283 S. W. 151 (Tex.Comm’n.App. 1926, jdgmt. adopted).
Your final question is whether the Treasurer may deliver the
securities to the Board of Insurance for subsequent delivery to the
various companies. Article 1.10, section 17(e) provides that the Treas-
urer shall “release, transfer and deliver such deposit or deposits to
the owner as directed in said brder. ” Since the statute expressly re-
quires delivery by the Treasurer to the owner it is our view that he may
not merely deliver the securities to the Board of Insurance,
SUMMARY
The State Treasurer may indicate that delivery
of securities will be made in Austin, Texas, to the
owner or his authorized representative.
Neither the State Treasurer nor the State Board
of Insurance may require cleposited securities to be
registered where the type of security is expressly
limited by statute.
The Treasurer may not merely deli,ver the
securities to the Roard of Insurance for subsequent
delivery.
p. 3165
The Honorable Jesse James, page 4 (H-745)
APPROVED:
T232b.J .o,.m
DAVID M. KENDALL, First Assistant
;--L
C. ROBERT 1SEATH, Chairman
Opinion Committee
p. 3166