# 244

OFFICE OFTHE ATTORNEYGENERAL OFTEXAS
AUSTIN



## 8lsns **w APtiae**  **6, rhluh** **read0**
as follovs,

ati6uPplltmIn f&o be law&lIn its se&l 

### d aorpQretion 

### shall liedtotheStateB*nldng Board ger&wlon tomake a ants rillowadhe!Wunder~ 

### sslenshall

beentered amgularmt3etLngOf seiabanking oarporation.6

*A banking corporation reamtlg inoorporated uWaF the laws of this State, had.zq a aa@tal etoek ef $!3S,OOO,OO, surplus OS 

### $10~~00.00 and debeaturee outetaznW& in the

# 245

iionorableLee hrady 

## -we 2

costing $2*295.oo. It has also installed avault door 

## at a Cost of !$SOO.OO,**Venitian** blinds at a cost of $71.20 and a Xeon sign at the entranae of the ouotoxers* vault at a ooet of $20.00. These items have been ndiled to the cost of tiie buildiug, nskln& a total 0P $l!J,lS9.l2, at which f'igurti the building is aarried on thebooks of the bank. This hank has invested In amvablc fl.xtursoa sux equal to 15% 0P its oapltal and surplue.

alho bauk has taken the position that thebuilt-in xarble fixtures above mentioned heving been ooustruafod onbrlok walle, constitute a part of thebuildlug and, therefore, are not fixturee within the plrview ofArticle 6j.2above tintioned. The fame poeition ie taken tfth reference to the vault door, **Venltlan** blinda and Beon aigu.

*Please adv& whether or not them marble fixturea, this vault door, blinds and sign are *fAxture6i*u&thin the purvier ofArtiole Sl2, or whether they Coustitute a part of thebapldne house within themeanIn& oi that Statute.*

Pour inquiry ie incapable of aderin.&teor flual nn8wer oneway or the other, for the reaaous hereinafter etatod.

Zhe term Vixtures*, in legal contemplation, ordinarily means thoee articles or things that are peruanantly attached to the laud,with the iotention that they abould become a part thereof. Obvimely, theword is not ueed in this muse in thebauk statute, but rather it isused in the sense~ofpersonal property comaonly known aa atrade Bxture8*. These trade f?xturee may, and In nm5t inetanoes do, con&at 0P articles ~uaaable of perxanout attachment to the Land, but on tbs other baud, they are llk%oi.seequally sapable of use a6 personal proyerty , with no intention whatwer of pemanently attaohing them to the realty.

The Biatter is not determined by any rule of physical or structural attaohment of the Pixture to the land, such #ysica.l attaobmant, and the extent aud nature thereof, aPemerely clmm5stan ocs tendlng to evtienoe the real intenti-onof the person or persons WVI%~~ thebuild**5,ng md**  **the fixtures.**  sa& and wery artlole mentioned by you may, preeent the proper intention, become aod be ahonorable Lee Brady - psgo 3

part of thebuilding, and therefore a part of'the lad. On the other hand, each and avery at%iole mentioned by you, prseant such an intention,may become and be trade fixtures -- personal property -- andnot a part of the buLlding inwhioh thay are locatsd, and towhhiohthey may even be to sop10extent phyeloally attsohed.

Aa early as tlutchinav. tiaatsraon,40 Tex. 661(3877) our BupFeme Court said;

'It is said, theweight of the uodern 

### authorities

establlah the doctrine tbst the true criterion for deteradnlng whether a chattel has become an iamovabla fixture, aonslsta in the united applfcstion of the Pollowing tester

"lat. has **there** been a real **or** constructive annexation of the artiole in quoat&on to the realty?

'26. Uaa there 

### afitness or adsptatlon of such article to the use6 or pzrposea of the realty with whish it is connectadt

"3cz. Uhether or not itwas the intsntion of the @rty making tha snnexation that the chattel abould beaome a permanent aaaemalon to the freekoldt - this intention being Inferable Prom the

### natureof the article, the rsletion andsituation of the parties interested, the policy of the law in respect thereto, the mode of annexation, aad plrposs or use for which the snnexation ismade.

"And of'thcae thrse teats, preemtaencs is tobe given to the question of intention toma&e the artiole a permanent aoseaaion to the freehold, whlls tha others are ohiefly of value as evidanoe as to this intention. (&%311 on Fixtures, 21, 22.)"

In Moody v. Aiken, 50 Tex. $a (lW73) abanksr(s safe was involvad, and while tba safe itself was not eesurad to thebuflbing, itwaa, however, enaloosd **withln** themalla of avault in such way as it could not be **remwed.** tithouttlonorableLeeYrady-page4

**destroying** thewalls In part, and was thus effeotually ma&faftftau the building. In that oaee the Supreme

**Vore** reoent declsiohs have, however, to 803118

extent, brought order out of this confusion, andhave established for our guidance oertain rules Sounded on reason am oustom. These make the true test of a removable flnture at least to depcmd not so vaxh on the m3re

## taotof *a ligature, a bolt, or a **acre+** a6 upon constructive an

### nexation,

the intention of the party in making the 

### same,**and** 

### therelationwhich the artiole bears to theuses of the freehold.*

.The oourtfurther adds*

**Wzxler** the authority OS the ease OS Sutehine ve. **liastereon** and others aited above, the intention **of the**  parties bedomes a controlling element in the detorm&nation of the question whether a particrularannexation has **or** has not aeeumed the oharaoter of a **f'lxture*,** and affirmed the judgment of the trial oourt, holding the safe tobe peraonalty and not a part 

### ofthe realty.

In the ease 

### ofInge **Y.** First State Bank ofDonton, 67 8. 8. (2) 217, involting a timt#-lockdeer to avault used by abank, Juatiae Lattimore said;

*The obligation of the appellee by ita lease was toreturn the building 'lls it nor is.' Ue are thus relogat%d to the rules **izl Hutahhs**  **Y. bisetsrson,**  46 Tex. 554, 26 &u. Rep. 266. The ru13s therein set out, when read in the light ofbioG6.y

VS. diken, 60 73X. 66, mak% it plain that our rule of publLc polio7 and in favor of trade and to enoourage industry encoura&~ the tenant to install trade f&xturos which, 

## if sreated for a mere temporary purpose and without any intention on the

## part OS the tenant that **fame besome**  **a p8rt**  **of ti3**  **realty, and**  **IS**ii3nwable Leo Mwdy - page 2

not so attached as tobegoms a part thereof, maybe removed. It is the intention which is the important factor, hems tb3 erfdenoe of thebank officials that appellee did not Intend for the articles tobeoome a part of ths realty. This testimony was admissible, but it was not arcluslve; *the intentton belng inferable from the nature of the artiole, the situation of the

## psrtiosinterested, the mode of annexation, the oiroumstanosa vhioh require the installation and the use to

### be made thereof.*

The court then heltl:

l Ths time lock dooraod thebank cages and windows are trade f&&urea. a~@ OS suah the tenant is entitled toC3mwe then. It is of no importanae that the aloeet door (hold tobe roalty) mat&he8 in appearanae the oages, but it is of importance that the the lock door is espeoially abank vault doer. The one Uor is not a trade fixture, the other Is.~

See aleo, Dallas Joint Btock Land Bank t.Lan

### caster, 1066. W1.(2) 1929) Clark 

### YOClark, 107 6.W. (2) 421.
Tikeae09308 are cit.& and quotsd for the ptrpoee of empha~iziug the fact that thematter of classification of thefixture is largely if not altogether one of inten

### tion

. By ~intention~ we mean, of oourse, the intention of the party ,puttingin or install$ng the

### fixture.

PI-0~3 

### whatwe have said, it followa that if the bank in question in oonstmoting its btilding plaaed or

### fnstalled its narble fixtures, cages, vault door, Venetian blirxlsitnii

Neonoipp, intending at ttletime that these tbing,sshould be a permanent part of thebuilding, they would be such in law. 

### This presents a queetion of fact which you are auUloriead to determine from the evidence before you. 1n this conneotion, we will say 

### thatauoh fact 

### queation shouldbe doter&n&l from all the faots an5 circusstanoes surrauxxiingthe eitmti.on, and not alone by the
mre pesmt statewmt of'the Board members who oonstrucf-

### Pomorable Lee irr%dy- page 6

ed the building;. The **faot** that the bank has amried on its books thebanking house at a value to Include the oost of these Mxtur~a ,is a cogent olraumatanee supporting the present oontention of thehank with reseronoe to the oh%ractar of the fixtures, or in other words, with respect to the intantion of the b%nk at the time thebuilding v%a constructed and the fixtures inatall3d.

Under date ofJ%nu%ry 8, lQg+t,thevriter of this opinion, then counsel to theBw **Ctnmnlaeloner,** advised your Department with reapeot to the statue o? % bank vault door %s % r3al fixture **or** trod3 fixture, a oopy of shioh opinion is before us, %nd % ooy~ otwhleh you luayhave if the original is hot %va&lable to you at thistime. 

### Trusting thatwhat we hare said vi11 be a auffici3nt 3nsver to your inquiry, vs 3rs

Verytlulyyoure