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 Septembermonthly report, this being an opinion addressed to the Honorable Geo. h. Sheppard, and having to do with the liability of banks in connectionwith the rights of survivors in respect to a joint accountmaintained by the bank and in respect to the question of access to a joint safetydeposit box. This condensed reference reads as follows:
~~f0-5d12

TO: George H. Sheppard, Comptrollerof Public Accounts. Date: September 30, 1943. Since Arts. 541dand 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~:As:~.s., have oeen repealed by Acts 1943, 48th Leg., H.B. 79, Ch. 97, 7. 12'7, Art. 7144~3,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 survivordepositor of a joint account to check on the account or to have access to a joint safety deposit box.' "Accordinglywe wrote you under date of April 4, requesting a copy of the opinionwhich you transmitted to us under date of April 7. ionNo. We have read this opinion along with your opinO-5836 and we arewondering if any conflictexists in respect to the subjectmatter. Although the Texas Ranking Code repealed those sectionsof the law set out in your opinionNo. 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 appreciateyour 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 541dand 541e, respectively, of Vernon's codificationof the Revised Civil Statutes, are as follows:

"SECTION 1. When a deposit shall bemade in any bank organized and operating under the laws of this State or in any natlonal 'bankor other banking institutiondoing 'business in this State by any person in the name of such depositor or in the name of suchdepositorand another person and with notice to the bank that such deposit shall bepaid to either
or the survivorof them, such deposit and any additions thereto made by either of suchpersons after the making thereof, shall be held for the exclusiveuse 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 sufficientrelease and discharge to such bank
or banking institution for all paymentsmade on account of such deposit prior to the receipt by such bank or banking institutionof notice inwriting not to pay such deposit in accordancewith the terms thereof.

"SEC. 1-A. Thatwhen any safety deposit box has been* or shallhereafter be, rented by any bank, savings bank or trust company transactingbusiness in this State, in the
names of two or more persons,with the right of access given to either,.or to the survivor or survivorsof 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, shallbe exempt from all liability whatsoever to any person whomsoever for permitting such access to, or removal of contents from, said safetydeposit box."
This Act was expresslyrepealed ‘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 provisionsupon these two matters thus contained in the repealed statutes, oeing ChapterVii, 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, marriedwoman, or other person underdisaoillty,
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 oneHonorable H. A. Jamison, page 3 0-5612-A

of such joint depositors (beforeor after the death of the other joint depositor or depositors),or to suchminor, married woman,,or other person under disability, or on the death or disaoility of the trustee, to the beneficiaryof such trust."
"Any state,national or private bankmay maintain safety depositboxes 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 landlordand tenant and the rights and liabilities of the bank shall 'begoverned accordingly,and the lessee shallbe deemed in law for all purposes to be in possession of the box and the content thereof, If a safety depositbox is held in the name of two (21) or more persons jointly,any one of suchpersons shall be entitled to access to suchbox 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 -aidpersons. ' 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 'boxin the presence of two (2)executive officers of the bankand 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. Ifsuch rental, cost and damages are not paidwithin 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 propertyunder deed of trust."
The 'Texas

Banking Code, therefore contains the law applicaole to the suoject formerly governed oyArticles .541d and 541e.

Our opinionNo. O-5612 addressed to Honorable Geo. H, Sheppard, Comptroller of Public Accounts ,)dealtwith the question of whether
or not Article 71&a, Sec. lo, Vernon'sRevised Civil Statutes, supersededArticles 541d and 5l+le.Article 7144awas enactedby 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 decedentwho 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 representativesof said decedent, or to the survivor or survivorswhen held in the joint names._.,.

honoraoleh. 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 andplace of such intendeddelivery or transferbe servedupon 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 authorizedagent, who may be the County Judge of the county inwhich said transfer transpires, unless the Comptroller in writing consents to the transfer without his presence. And it shallhe lawful for the said Comptroller or his representativeto 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 interestdue or thereafterto 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 thepayment of such tax and interest thereon, or the penalty above prescribed, or both,may be enforced in an action broughtby the Comptroller in any court of competent jurisdiction.
l'(b) When it ismade to appear to a County Judge in this State that a safe deposit company, trust company,bank, person or corporationhas in its possession, or under its control papers of a decedent or whose estate such court has jurisdiction,or that the decedenthas leased from such a corporationa safe deposit box, and that suchpapers or such sal'c

deposit boxmay containa twillof the decedent, or a deea to a ourialplot inwhich 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, trustcompany, onnk, person, or corporationto permit a person named in the order to examine suchpapers or safe deposit box in the presence of himself, or his duly authorized representative, or a representativeof 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 suchpapers, or in such box, to deliver said will to the Clerk of the Probate Court of such co;:nty or said deed to suchpersons as may be desjgnated in such order, or salci

policy of insuranceto the beneficiarynamed therein. 'The

Clerk of said court shall furnish a receipt upon the delivery of the will to him."

We answered the Comptroller'sinquiry as follows:HonorableH. A. Jamison, page 5 0-5612-A

"Any doubts existing thereforeas to whether saidArticles 541d and 541e arestill in effect have beendispelled by the express repeal of these Articles by the 4bth Legislature."
The writer of that opinion conferredwith the Comptrollerand was advised that informationas to the repeal of Articles 5lJd and 54le sufficientlyanswered his inquiry,and furtherdevelopment of the matter was deemed unnecessary. The question of the effect of the Banking Code on Article 7144a was not passedupon in the opinion.

An answer to your present inquiryrequires that we consider whether the Banking Code repealedArticle 7144a, Sec. 16. The settled law in Texas is reflected in the following text statement: "According to numerous pronouncementsof the Texas courts, the repeal of statutes by implicationis never favored nor presumed. The two actswill persist unless the conflictingprovisions are so antagonisticand repugnant that 'bothcannot stand. <there there,isno express repeal, the presumption is that in enactinga new law the Legislature intended the old statute to remain in operation. Accordingly, a repeal by implicationwill 'beadjudged only when such result is inevitableor wasplainly intended by the Legislature. If ny any reasonable constructiontwoacts or statutoryprovisions 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 statutesreferred to can be harmonized so that bothmay stand. Ch. Ii(, Art.ll, of the Banking Code also containsa "shot-gun clause" repealing "all other laws orparts of laws in conflictherewith." The Banking Code sets up a "system of laws governing the organization, operation, supervisionand liquidation"of nanks and similar institutions. It does not purport to be a measuredealing with the subjectof taxation.
Section 16 of Article '7144a,(S.B.No. 412, Ch. lY2, p* 561,Acts of lY33) on the other handwas a taxmeasure. Its purpose is indicatedby the emergency clause of the lawwhich reads as f'0110ws:
"Thatby reason of the fact that there ismuch and unparalleled delinquency and an inadequateenforcement of our present...inheritanceand other tax laws, andthe further fact that it is imperative that said'taxlaws be strengthened, and that an adequate system of enforcementand collectionof delinquent taxes be provided for, togetherwith the fact thatHonorable H. A. Jamison,page 6 0-5612-A

the government of the State of 'Texasis losing millions of dollars annuallyby reason of such condition, creates an emergency,"etc.
The Banking Code, in the sections thereofpreviously quoted, provides in effect that a bank Is authorized to surrender contents of safety depositboxes and pay deposits to anyone of two or more joint lessees ordepositors. A careful reading of Article 7144a reveals that it doesnot forbid suchpayment and is not in conflictwith the foregoing. Article 7144a simply provides in substance that the Comptroller shall have an opportunity to o'otain

a record of a decedent'sassets in a bank before same are turned over to his survivor,which record is of considerableaid to the Comptroller in preventingan evasion of the InheritanceTax.
The practicalworkings of this law are described in a letter from the Comptrollerto this departmentwritten 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 assetswithout first obtainingpermission from this office. The ten days notice required in the statutes iswaived 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 standagainstweakening the barriersthat guard against tax evasion. Since all indications point to the contrary,we hold that this wholesome provision in our inheritance tax laws standsunrepealed. As above explained, it isapparent 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