THEAITORNEY GENERAL 

OFTEXAS 

Honorable H. A. Jamison 

Commissioner, Department of Banking 

Austin, Texas 

Dear Sir: Opinion No. 0-5612-A 

Re: Liability of banks in connection 

with the rights of survivors in 

respect to a joint account, etc. 

Your request concerning the above subject matter is as follows: 

"A few days ago we observed aoondensed reference to your 

Opinion No. 0-5612 in your September monthly report, this 

being an opinion addressed to the Honorable Geo. h. Sheppard, and having to do with the liability of banks in connection with the rights of survivors in respect to a joint 

account maintained by the bank and in respect to the question of access to a joint safety deposit box. This condensed reference reads as follows: 

~~f0-5d12 TO: George H. Sheppard, Comptroller of Public Accounts. Date: September 30, 1943. Since Arts. 541d and 

54le, R.C.S., 

~:As:~.s., 

have oeen repealed by Acts 1943, 48th Leg., 

H.B. 79, Ch. 97, 7. 12'7, Art. 7144~3, Sets. 16a, 16b, 

governs the liability of banks for allowing the 

survivor depositor of a joint account to check on the account 

or to have access to a joint safety deposit box.' 

"Accordingly we wrote you under date of April 4, requesting 

a copy of the opinion which you transmitted to us under date 

of April 7. 

ion No. 

We have read this opinion along with your opinO-5836 and we are wondering if any conflict exists 

in respect to the subject matter. 

Although the Texas Ranking Code repealed those sections of 

the law set out in your opinion No. O-.%&Z the code contained 

new sections on the subject matter; to-wit, Article 10 

Chapter 7 and Article 6 Chapter 9 of the Code, to which your 

attention is invited. We would appreciate your further 

views in the matter." 
Honorable H. A. Jamison, page 2 O-5&Z-A 

Sections 1 and 1-A of Senate Bill No. 61, Ch. 117, of the l+lst 

Legislature (192Y), being Articles 541d and 541e, respectively, 

of Vernon's codification of the Revised Civil Statutes, are as 

follows: 

"SECTION 1. When a deposit shall be made in any bank organized and operating under the laws of this State or in any 

natlonal 'bank or other banking institution doing 'business in 

this State by any person in the name of such depositor or 

in the name of such depositor and another person and with 

notice to the bank that such deposit shall be paid to either 

or the survivor of them, such deposit and any additions thereto made by either of such persons after the making thereof, 

shall be held for the exclusive use of such persons and may 

be paid to either during the lifetime of 'both or to the survivor after the death of one of them, and such payment shall 

be a valid and sufficient release and discharge to such bank 

or banking institution for all payments made on account of 

such deposit prior to the receipt by such bank or banking 

institution of notice in writing not to pay such deposit 

in accordance with the terms thereof. 

"SEC. 1-A. That when any safety deposit box has been* or 

shall hereafter be, rented by any bank, savings bank or 

trust company transacting business in this State, in the 

names of two or more persons, with the right of access given 

to either,.or to the survivor or survivors of said persons, 

either of such persons, whether the other be living or not, 

shall have the right of access to such deposit box and may 

remove therefrom the contents thereof, and in all such cases 

where such removal shall have been made the said oank, savings 

bank, or trust company, shall be exempt from all liability 

whatsoever to any person whomsoever for permitting such 

access to, or removal of contents from, said safety deposit 

box." 

This Act was expressly repealed ‘by the Texas Banking Gode of 1943. 

(H.B. No. 79, Ch. y'/, l+tith Leg., G. L., p* 127) 

As pointed out by you, the Banking Code contains express provisions upon these two matters thus contained in the repealed statutes, oeing Chapter Vii, Art. 10, and Chapter IX, Art. 6, respectively, as follows: 

"A bank may pay a 

7 

resent or future deposit, payaole to or 

on the order of (a any one of two or more persons, or (b) 

a minor, married woman, or other person under disaoillty, 

or in form payable to or on the order of one person, for the 

oenefit of or in trust for another, without the terms of 

the trust being disclosed to the bank in writing, to any one 
Honorable H. A. Jamison, page 3 0-5612-A 

of such joint depositors (before or after the death of the 

other joint depositor or depositors), or to such minor, 

married woman,, or other person under disability, or on the 

death or disaoility of the trustee, to the beneficiary of 

such trust." 

"Any state, national or private bank may maintain safety 

deposit boxes and rent the same. In all such transactions 

the relationsnip of the 'bank and the renter shall, in the 

absence of a contract to the contrary, be that of lessor and 

lessee and landlord and tenant and the rights and liabilities 

of the bank shall 'be governed accordingly, and the lessee 

shall be deemed in law for all purposes to be in possession 

of the box and the content thereof, If a safety deposit box 

is held in the name of two (21) or more persons jointly, any 

one of such persons shall be entitled to access to such box 

and shall oe permitted to remove the content thereof and the 

bank shall not be responsiole for any damage arisin$io;h;ason 

of such access or removal oy one of -aid persons. ' 

box rental is delinquent for six (6) months, the bank after 

at least sixty (60) days' notice by mail addressed to the 

lessee at his address on the books of the bank, may, if the 

rent is not paid within the time specified in said notlce, 

open the 'box in the presence of two (2) executive officers 

of the bank and a notary public and place the content of the 

box in a sealed envelope or container 'bearing the name of 

the lessee. The bank shall then hold the content of the box 

and the damages in connection therewith. If such rental, 

cost and damages are not paid within two (2) years from the 

date of opening of such box, the bank may sell any part or 

all of the content at public auction in like mannerand 

upon like notice as is prescribed for the sale of real 

property under deed of trust." 

The 'Texas Banking Code, therefore contains the law applicaole to 

the suoject formerly governed oy Articles .541d and 541e. 

Our opinion No. O-5612 addressed to Honorable Geo. H, Sheppard, 

Comptroller of Public Accounts ,) dealt with the question of whether 

or not Article 71&a, Sec. lo, Vernon's Revised Civil Statutes, 

superseded Articles 541d and 5l+le. Article 7144a was enacted by 

the 43rd Legislature (1933), and Sec. lo provides as follows: 

"(a) No safe deposit company, trust company, corporation, 

bank or other institution, person or persons, having in 

possession or under control securities, deposits, or other 

assets belonging to a decedent who was a resident or nonresident, or belonging to such a decedent and one or more 

persons, shall deliver the same to the executors, administrators, heirs or legal representatives of said decedent, 

or to the survivor or survivors when held in the joint names 
._.,. 

honoraole h. A. Jamison, page 4 0-5612-A 

of a decedent and one or more other persons, or upon their 

order or request, unless notice of the time and place of 

such intended delivery or transfer be served upon the Gomptroller at least ten days prior to said delivery or transfer, and delivery to 'be made only in the presence of the 

Comptroller or his duly authorized agent, who may be the 

County Judge of the county in which said transfer transpires, 

unless the Comptroller in writing consents to the transfer 

without his presence. And it shall he lawful for the said 

Comptroller or his representative to examine all of said 

securities, 

or transfer, 

deposits or assets at the time of such dellvery 

Fail.ure to serve such notice or failure 'to 

allow such examination shall render such safe deposit compw , trust company, corporation, oank or other institution, 

person or persons liable to the payment of the amount of 

the tax or interest due or thereafter to become due upon 

said securities, deposits or other assets delivered or transferred, and in addition thereto, a penalty of not less than 

one thousand or more than five thousand +ollars; and the payment of such tax and interest thereon, or the penalty above 

prescribed, or both, may be enforced in an action brought by 

the Comptroller in any court of competent jurisdiction. 

l'(b) When it is made to appear to a County Judge in this 

State that a safe deposit company, trust company, bank, person or corporation has in its possession, or under its control papers of a decedent or whose estate such court has 

jurisdiction, or that the decedent has leased from such a 

corporation a safe deposit box, and that such papers or 

such sal'c deposit box may contain a twill of the decedent, 

or a deea to a ourial plot in which the decedent is to hoe 

interred‘ or a policy of insurance issued in the name of 

the decedent and payable to a named 'beneficiary, he may 

make an order directing such deposit company, trust company, onnk, person, or corporation to permit a person named 

in the order to examine such papers or safe deposit box in 

the presence of himself, or his duly authorized representative, or a representative of the Comptroller, and an officer 

of such safe deposit company, trust company, Dank or corporation, or agent of such person. and if such documents are 

found among such papers, or in such box, to deliver said 

will to the Clerk of the Probate Court of such co;:nty or 

said deed to such persons as may be desjgnated in such order, or salci policy of insurance to the beneficiary named 

therein. 'The Clerk of said court shall furnish a receipt 

upon the delivery of the will to him." 

We answered the Comptroller's inquiry as follows: 
Honorable H. A. Jamison, page 5 0-5612-A 

"Any doubts existing therefore as to whether said Articles 

541d and 541e are still in effect have been dispelled by 

the express repeal of these Articles by the 4bth Legislature." 

The writer of that opinion conferred with the Comptroller and was 

advised that information as to the repeal of Articles 5lJd and 

54le sufficiently answered his inquiry, and further development 

of the matter was deemed unnecessary. The question of the effect 

of the Banking Code on Article 7144a was not passed upon in the 

opinion. 

An answer to your present inquiry requires that we consider 

whether the Banking Code repealed Article 7144a, Sec. 16. The 

settled law in Texas is reflected in the following text statement: 

"According to numerous pronouncements of the Texas courts, 

the repeal of statutes by implication is never favored 

nor presumed. The two acts will persist unless the conflicting provisions are so antagonistic and repugnant that 

'both cannot stand. <there there,is no express repeal, the 

presumption is that in enacting a new law the Legislature 

intended the old statute to remain in operation. Accordingly, a repeal by implication will 'be adjudged only when such 

result is inevitable or was plainly intended by the Legislature. If ny any reasonable construction two acts or 

statutory provisions can be reconciled and so construed that 

both may stand, one will not be held to repeal the other." 

39 Tex. Jur. 140. 

Using the a'bove as a standard of measurement, we find little 

difficulty in concluding that the statutes referred to can be 

harmonized so that both may stand. Ch. Ii(, Art.ll, of the Banking Code also contains a "shot-gun clause" repealing "all other 

laws or parts of laws in conflict herewith." The Banking Code 

sets up a "system of laws governing the organization, operation, 

supervision and liquidation" of nanks and similar institutions. 

It does not purport to be a measure dealing with the subject of 

taxation. 

Section 16 of Article '7144a, (S.B. No. 412, Ch. lY2, p* 561, Acts 

of lY33) on the other hand was a tax measure. Its purpose is 

indicated by the emergency clause of the law which reads as 

f'0110ws: 

"That by reason of the fact that there is much and unparalleled delinquency and an inadequate enforcement of our 

present...inheritance and other tax laws, and the further 

fact that it is imperative that said'tax laws be strengthened, 

and that an adequate system of enforcement and collection of 

delinquent taxes be provided for, together with the fact that 
Honorable H. A. Jamison, page 6 0-5612-A 

the government of the State of 'Texas is losing millions of 

dollars annually by reason of such condition, creates an 

emergency,"etc. 

The Banking Code, in the sections thereof previously quoted, 

provides in effect that a bank Is authorized to surrender contents of safety deposit boxes and pay deposits to anyone of two 

or more joint lessees or depositors. A careful reading of Article 7144a reveals that it does not forbid such payment and is 

not in conflict with the foregoing. Article 7144a simply provides in substance that the Comptroller shall have an opportunity to o'otain a record of a decedent's assets in a bank before 

same are turned over to his survivor, which record is of considerable aid to the Comptroller in preventing an evasion of 

the Inheritance Tax. 

The practical workings of this law are described in a letter 

from the Comptroller to this department written in 193S, wherein 

it is said: 

"A commission is issued to an agent, who is usually an employee of the bank, for the release of such assets without 

first obtaining permission from this office. The ten days 

notice required in the statutes is waived in this procedure." 

Thus, under this system, a survivor can obtain his money or property, 

delay 

as provided and authorized in the Banking Code, and without 

', and the Comptroller receives from the bankerwho has been 

designated as his agent a written report on the holdings in the 

bank of the decedent. 

There is nothing in the Banking Code reflecting the Legislature's 

intent to depart from its traditional stand against weakening 

the barriers that guard against tax evasion. Since all indications point to the contrary, we hold that this wholesome provision in our inheritance tax laws stands unrepealed. As above explained, it is apparent there is no conflict in the opinions 

under review. 

Yours very truly 

ATTORiVEY GElURAL OF TEXAS 

APPROVED APR. 29, 1944 

G.P. Blackburn 

ATTORNEY GENERAL OF TEXAS 

BY Ocie Speer 

Assistant 

OS,JAS:AMM 

J. Arthur Sandlin 

Assistant