Case Information
*1 ‘Ihe Honorable Jesse James Opinion No. H- 745 Treasurer, State of Texas
State Capitol Building Re: Procedure for return 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, 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, is to “release, transfer and deliver
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 in his care? (3) May the State,Treasurer deliver to the companies?
While the State Treasurer has no expressly provided rule making authority, he may exercise those powers necessary and proper 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 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, or his authorized
Your second question is whether companies may be required 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 *3 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 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 nor the Commissioner of Insurance may require these securities to be registered, for powers may not be implied where a statute is explicit Creager v. Hidalgo County Water Improvement on the point in question. 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
various companies. Article 1.10, section 17(e) provides that the Treas- urer shall “release, transfer and deliver
the owner as directed in said brder. ” Since the statute expressly re- quires delivery by the Treasurer it is our view that he may not merely deliver to the Board of Insurance,
SUMMARY The State Treasurer may indicate that delivery of securities will be made in Austin, Texas, owner or his authorized
Neither 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 to the Roard of Insurance for subsequent delivery.
The Honorable Jesse James, page 4
APPROVED:
T232b.J .o,.m
DAVID M. KENDALL, First Assistant
;--L C. ROBERT 1 SEATH, Chairman
Opinion Committee
p. 3166