                               The Attorney          General of Texas

JIM MAl-fOX                                       June 6, 1986
Attorney General



Supreme Court Bulfdlng         Honorable Chet Brooks                            Opinion No.    JM-498
P. 0. Box 12548
                               Chairman
Austin, TX. 78711.2545
5121475-2501                   Committee on Health and Human                    Re: Whether article       342-903,
Telex 9101874.1367                Resources                                     V.T.C.S..    which broadens the
Telecopier 512/475.02SE        Texas State Senate                               definition    of "drive-In/walk-
                               P. 0. Box 12068, Capitol Station                 up facility"     contravenes    the
714 Jackson. Suite ID0
                               Austin, Texas   78711                            constitutional        prohibition
Dallas. TX. 75202-4506                                                          against branch banking
214/7428944
                               Dear Senator Brooks:
4824 Alberta Ave., Suite 160
El Paso, TX. 7S9052793
                                     Article  XVI, section      16, of the Texas Constitution       prohibits   a
9151533-3464                   bank from engaging in business at more than one location.                You ask
                               whether a bill enacted by the Sixty-ninth          Legislature  amending article
                               342-903, V.T.C.S.,     the statute prohibiting      so-called  "branch banking,"
1001 Texas, Suite 7DO          is constitutional.       In addition to the operation of detached facili-
Houston. TX. 77DO2.3111
                               ties authorized by previous amendments, the 1985 amendment permits the
713/2235888
                               operation of one "drive-in/walk-up       facility"    within 20,000 feet of the
                               bank's central     building,    a distance    just short of four miles.         It
806 Broadway, Suite 312        defines "drive-in/walk-up      facility"   to mean
Lubbock. TX. 78401.3479
SW747.5235                                a facility   offering    banking services solely  to
                                          persons who remain . . . in a building     having a
4309 N. Tenth, Suite B                    secured teller     lobby during the transaction  of
MeAllen, TX. 7850%1885                    business with the bank.
51215824547
                                     Your question    arises out of a particular        fact situation    of which
200 Main Plaza. Suite 400      you have been apprised.          You indicate   that two state banks in Dallas
San Antonio. TX. 782052797     have merged pursuant to article           342-308, V.T.C.S.     Both state banks
51212254191                    are wholly-owned by the same bank holding company.                Both facilities
                               offer full banking services         and operate under the name of one of the
                               banks involved     in the merger, now designated           the "resulting     bank."
An Equal Opportunity/
Affirmative Action Employer    The resulting     bank regards the central building          of the other as its
                               "drive-in/walk-up      facility"     under the purported       authority     of the
                               newly-amended article       342-903, V.T.C.S.,     because it is located within
                               20,000 feet of the resulting          bank's central building      and because it
                               offers banking services        to persons who remain "in a building        having a
                               secured teller      lobby during the transaction           of business    with the
                               bank."    You wish to know whether the statute,         if it fairly can be read
                               to authorize such a practice,        violates   article   XVI, section 16. of the
                               Texas Constitution.       We answer your question in the affirmative.



                                                         p. 2266
Honorable Chet Brooks - Page 2        (Jbi-498)




       Article   XVI, section   16, of   the Texas Constitution      provides   the
f olloving:

                 Sec. 16.     (a) The Legislature    shall by general
             laws,    authorize    the incorporation     of corporate
             bodies with banking and discounting privileges,       and
             shall provide for a system of State supervision,
             regulation    and control   of such bodies which will
             adequately    protect   and secure the depositors     and
             creditors   thereof.

                 No such corporate body shall be chartered until
             all of the authorized caoital    stock has been sub-
             scribed and paid ,in full in cash.    Except as may be
             permitted by the Legislature  pursuant to Subsection
             (b) of this Section 16, such body corporate       shall
             not be authorized    to engage in business     at more
             than one place which shall be designated        in its
             charter.

                No foreign corporation,   other than the national
             banks of the United States domiciled in this State,
             shall   be permitted  to exercise   banking or dis-
             counting privileges  in this State.

                 (b)   If it finds that the convenience           of the
             public will be served thereby, the Legislature           may
             authorize State and national banks to establish          and
             operate unmanned teller      machines within the county
             or city     of their    domicile.      Such machines may
             perform all banking functions.           Banks which are
             domiciled    within   a city     lying   in tvo or more
             counties may be permitted to establish          and operate
             unmanned teller     machines within both the city and
             the county of their domicile.       The Legislature    shall
             provide that a bank shall have the right to share
             in the use of these teller        machines, not situated
             at a banking house. which are located within the
             county or the city of the bank’s domicile,              on a
             reasonable,     nondiscriminatory      basis,    consistent
             with anti-trust     laws.   Banks may share the use of
             such machines within the county or city of their
             domicile    with savings and loan associations            and
             credit    unions which are domiciled          in the same
             county or city.

                 (c) A corporate body created by virtue of the
             power granted by this section,    notwithstanding any
             other provision    of this  section,    has the same




                                      p. 2267
Honorable Chat Brooks - Page 3         (JN-498)




            rights and privileges  that are or may be granted to
            national  banks of the United~ States domiciled   in
            this State.   (Emphasis added).

      As a preliminary matter, it has been suggested that, because of
subsection   cc), we should look first     to federal     law to determine
whether the practice   in which the two banks have engaged is authorized
by federal law.    If so, the argument runs, the practice     would then be
authorized   by the Texas Constitution.      Accordingly,    we turn to 12
U.S.C. section 36, the so-called    McFadden Act, which permits national
banks to branch in certain limited situations.

       Essentially     the federal    act permits the operation       of a branch
bank by a national bank in three situations.              See generally Annots.,
30 A.L.R. 927 (1924).         50 A.L.R. 1340 (1927).      136 A.L.R. 471 (1942).
First,   a national bank may retain any branch. that it operated lawfully
as of the date on which the McFadden Act became effective,                  February
25, 1927.      12 U.S.C. 536(a).       Second, a national bank may operate a
branch, with the approval of the Comptroller of the Currency, under
the same conditions        in which a state bank may operate a branch.              12
U.S.C. 136(c).        Third, a national     bank may operate a branch if the
national bank resulted from a conversion of a state bank to a national
bank and the state bank lawfully             operated   a branch prior        to the
conversion     or if the national        bank, called      the “resulting      bank,”
resulted    from the consolidation        or merger   of a national       bank with
another bank.       12 U.S.C. 136(b).     In this last Instance, the resulting
bank is authorized        to operate the main office        (or branch office)     of
the other bank if the operation of branch banks is otherwise permitted
by state law and if the Comptroller of the Currency annroves of its
continued operation.         See First National Bank v. Dickinson.          396 U.S.
122 (1969); First NatI=            Bank of Logan v. Walker Bank & Trust Co.,
385 U.S. 252 (1966).            See generally    Annots.,     52 A.L.R.    Fed. 649
(1981); 23 A.L.R.3d 683 (1969).          Because the operation of s branch by
a national bank in the event of a consolidation            or merger with another
bank. is still     contingent upon the existence        of state law permitting
the operation      of such a branch, federal       law coupled with subsection
(c) of article       XVI, section    16, of the Texas Constitution         does not
provide any independent authority for a state bank to operate a branch
in the event of a merger.

       Texas is not alone in prohibiting          branch banking.    Eleven states
currently      prohibit      it.      Twenty-one     states  permit     it  on     a
less-than-statewide       basis.     Eighteen states permit it on a statewide
basis.    See generally.      Schlicting,    Rice and Cooper, Banking Law, Vol.
I, $55.01-5.06;       8.01-8.06.      Texas, however, is the only state that
prohibits     absolutely      branch banking       in its   constitution.      (The
Illinois    constitution     prohibits    branch banking, but it authorizes     its
legislature     by a specified       vote to permit it).       Indeed, until    the
adoption of article        XVI, section      16, in 1904, Texas prohibited      the



                                      p. 2268
llonorable   Chet Brooks - Page 4         W-498)




creation        of banking corporations,         not simply branches thereof;        the
Texas Constitutions            of 1845, 1861, and 1866 each prohibited               the
creation        of corporations     with “banking or discounting        privileges.”
Tex. Const. (1845) art. VII, section 30; Tex. Const. (1861) art. VII,
section 30; Tex. Const. (1866) Art. XVI, section 30. The Constitution
of 1869 did not include such a provision:               it was restored in the 1876
constitution.          See generally,      2 G. Braden, The Constitution        of the
State of Texas:           An Annotated and Comparative Analysis,         pp. 739-742
(1977).          The prohibition       reflected     the widespread    mistrust       of
financial        organizations    and the fear of concentration        of financial
power.        See “Interpretative     Commentary” to Texas Constitution,       article
XVI. section         16; see generally       First National Bank of Beaumont v.
Union Trust Co., 155 S.W. 989 (Tex. Civ. App. 1913, writ ref’d);
Burleson v. Davis, 141 S.W. 559 (Tex. Civ. App. 1911, writ ref’d).

      With the adoption      in 1904 of article    XVI, section     16, the
constitution   permitted the establishment    of a state banking system.
The original   House Joint Resolution   to amend article   XVI, section 16,
contained    no prohibition    on branch banking;    the House ultimately
adopted an amendment containing the prohibition.       In a study submitted
on August 18, 1952, by the Attorney General to the State Banking
Board, this office   declared at pp. 5-7:

             Although we have found no direct              evidence as to
             the purpose and intent of the amendment [prohibit-
             ing branch banking]             the history    of anti-trust
             legislation      in the 28;h Legislature       furnishes some
             explanation of how the idea of restricting             corpor-
             ations to one place of business came to the atten-
             tion of the law makers and what was hoped to be
             accomplished by such a restriction.                Whereas the
             popular resentment in Texas against                the banking
             business     appears to have subsided           to the point
             that the electorate          saw fit to remove the former
             constitutional        prohibition    and to permit banking
             institutions       to be incorporated       under the condi-
             tions authorized in the 1904 amendment, during the
             years prior to 1904 there had been no lessening of
             popular      distrust     and fear     of corporations       in
             general.       Indeed, most of the intense anti-trust
             feeling     during those years was very closely,             if
             not entirely.        associated    in the public mind with
             abuses      of     the    corporate     form     of   business
             organization.

             For a number of years prior to 1903 there           had been
             agitation   for comprehensive    anti-trust         legisla-
             tion, much of which was directly    designed        to limit
             and regulate the activities   of corporate         business.




                                       p. 2269
Bonorable   Chet Brooks - Page 5         (JM-498)




            One such regulation     that was widely     advocated
            would have required that corporations     in general
            be prohibited   from “establishing   or maintaining
            more than one plant or business,”      . . . and be
            restricted  “as to its operations elsewhere.   . . .I’

                .   .   .

            Governor Lanham’s Executive Message [of February
            5, 19031, suggesting among other things that cor-
            porations in general be prohibited           from “operating
            in more than one place,”             was accompanied by
            several    proposed anti-trust      laws, most of which
            were enacted into law by the 28th Legislature.
            The 1903 antitrust      legislation      still    constitutes
             [as   of    19521  the    bulk     of    the     substantive
            anti-trust    law of the state.        Thus    it  is reason-
            able to assume that the Governor, at least, was of
            the opinion that a prohibition            against engaging
            “in business at more than one place” had as one
            purpose     the same general         objective       as other
            anti-trust    measures, i.e..      prevention      of trusts,
            monopolies,     and conspiracies         in restraint         of
            trade.     (Emphasis added).

      Pursuant to article    XVI, section   16, the legislature     enacted a
branch banking statute,     which has been amended nine times since its
enactment as article     3 of Chapter IX of the Texas Banking Code of
1943.    The statute    originally   provided:    “No state,     national   or
private bank shall engage in business in more than one place, maintain
any branch office,   or cash checks or receive deposits        except in its
own banking house.”    Acts 1943, 48th Leg., ch. 97, subch. IX, 53, at
164.   The subsequent amendments each retained the above language but
redefined and expanded the definition     of “banking house.”

       The 1957 amendment expanded the definition        of “banking house” to
include office     facilities    whose nearest wall was located within 500
feet of the n,earest wall of the central building and was physically
connected to the central building          by tunnel, passageway, or hallway
providing direct access between the central building and the connected
office   facility   or by pneumatic tube or other similar carrier.             The
amendment contained         a proviso   essentially  requiring     the connected
facility    to be located either within the same city block or within
contiguous     city blocks or within a block located          diagonally   across
from the central building.         Acts 1957, 55th Leg.,   ch. 220, 51, at 448.
See Attorney General Opinion WW-22 (1957) (operation             of a “drive-in/
walk-up facility”     which is located 185 feet from the bank’s building,
which accepts deposits,        cashes checks, accepts payment on notes, and
handles the application       for personal loans of $500 or less. and which




                                        p. 2270
Honorable Chet Brooks - Page 6       (JM-498)




is connected to the bank’s building by two underground pneumatic tubes
and a closed circuit  television   cable contravenes the constitutional
proscription against engaging in business in more than one place).

       The 1959 amendment amended the proviso     contained in the 1957
enactment.    It expanded the permissible  distance between the central
office   and the connecting facility   to within 500 feet of the street
adjacent to the central building.    Acts 1959, 56th Leg., ch. 123, 51,
at 213.

      The 1963 amendment expanded the definition     of “banking house”
further by dropping the proviso      limiting the permissible     distance
between the central building and the connecting facility   to contiguous
city blocks.   The “500 feet nearest wall-to-nearest-wall     limitation”
was retained,  as was the requirement that the facilities   be connected
by either a physical structure such as a passageway or by a pneumatic
tube or other similar carrier.    Acts 1963, 58th Leg., ch. 81, 56, at
134.

      The 1971 amendment expanded the definition      of “banking house” yet
again by specifically     permitting  the establishment     in counties of at
least   350,000  population     one automobile    drive-in     facility  whose
nearest boundary was to be located no less than.500 feet nor more than
1,850 feet from the nearest wall of the central building and connected
to the central building      by either a hallway or passageway providing
direct physical   access, between the facility     and the central building
or by a pneumatic tube or other similar            carrier.      The amendment
declared:

           [T]he    term ‘automobile     drive-in     facility’    as
           herein used shall mean a facility      offering banking
           services    solely to persons who arrive           at such
           facility    in an automobile      and remain therein
           during the transaction    of business with the bank.

Acts 1971, 62nd Leg.,    ch. 358,   61, at 1352.

       The 1975 amendment extended the reach of the statute by dropping
the population     bracket.    It further    extended the maximum distance
between the central building and the drive-in        facility from 1,850 feat
to 2,000 feet and required        that the two be connected either       by a
passageway or hallway providing direct access between the two or “by
closed circuit     television,   pneumatic tube or other physically       con-
nected    delivery   device.”    The definition     of “automobile   drive-in
facility”    remained unchanged.    Acts 1975, 64th Leg.. ch. 215, §l. at
531.

     The 1981 amendment expanded the maximum distance               that could
separate the central building and the drive-in facility              from 2,000




                                    p. 2271
Honorable Chet Brooks - Page 7            (m-498)




feet  to 3,500 feet.    The facility   was            then   designated     "drive-in/
walk-up facility;" the amendment declared:

            [T]he term 'drive-in/walk-up      facility'   as herein
            used shall      mean a facility      offering   banking
            services   solely    to persons who remain outside of
            the facility      during the transaction    of business
            with the bank.

Acts 1981, 67th Leg.,      ch. 611, 91. at 2410.

       The 1983 amendment expanded the definition              of "banking house" in
three significant       ways. First,       the definition    was expanded to include
in addition       to the office      facility      located within 500 feet of the
central building,        a provision    first     enacted in the 1957 amendment and
retained in every subsequent amendment, not more than two additional
office   facilities      whose nearest walls were located within 3,500 feet
of the central       building and are physically           connected to the central
building      either    by passageway or hallway providing              direct    access
between the central building and the connected office                  facility    or by
closed     circuit     television    or pneumatic tube or other physically
connected delivery         device.    Second, the maximum distance by which a
drive-in/walk-up       facility    was to be separated from the central wall of
the main building was increased dramatically               from 3,500 feet to 10,500
feet, a distance only 60 feet short of two miles.                  Significantly,     the
definition      of "drive-in/walk-up       facility"    was expanded to read

            a facility      offering    banking services   solely  to
            persons who remain outside of the facility        or in a
            secured    teller     lobby during the transaction     of
            business with the bank.        (Emphasis added).

Acts 1983. 68th Leg.,      ch. 374, 51, at 2042.

       Finally the 1985 amendment expanded yet again the definition          of
"banking     house"   to authorize       the erection  of  "drive-in/walk-up
facility,"    in addition to those set forth in the 1983 enactment, which
is located within 20,000 feet of the central building,          a distance of
just under four miles.        The amendment contained a proviso that forbids
this additional     facility     to be located within the boundary lines of
any city or town that has a population of less than 5,000 and in which
a bank is already          located.    The definition  of *drive-In/walk-up
facility"    was amended to read:

            a facility   offering   banking services   solely  to
            persons who remain outside of the facility    or in a
            building having a secured teller   lobby during the
            transaction  of business with the bank.     (Emphasis
            added).




                                       p. 2172
Bonorable    Chet Brooks - Page 8           (m-498)




Acts 1988, 69th Leg.,         ch. 484,    II,   at 4100.

       We turn now to your specific                   request.      The issue is whether,
article    342-903, V.T.C.S.,          as amended, permits a bank “to engage in
business at more than one place” in violation                     of article      XVI, section
16 of the Texas Constitution.               The   threshold     question      to  be  addressed
is    whether    the services           offered       at such facilities             constitute
“business”     for purposes          of the constitution,              &,        whether such
services constitute        “banking.”        The statute on its face does not limit
the services      that can be offered             at such a detached facility.                 We
assume that, at a minimum,            such    facilities      accept     deposits    and   permit
withdravals,     i.e.,    accept “demand deposits.”                Because the definition
of “drive-in/walk-up         facility”      set forth in article            342-903 specifies
that such facility          offers     “banking services,”           it may appear super-
fluous to address this question.                However, two early Texas authorities
seeminalv concluded that the services                    tvnicallv      offered    at teller’s
windows-‘were~ snot ~“banking” but only &idental                          to banking,       Great
Plains Life Insurance Company v. First National Bank of Lubbock, 316
S.W.2d 98 (Tex. Civ. App. - Amarillo                      1958, writ ref’d         n.r.e.)    and
Attorney General Opinion V-1046 (1954).                    Consequently, even though the
statute does not require it, as a practical                        matter banks typically
limit services       offered     at drive-in        facilities      to services        generally
offered     at teller’s        windows.        The remaining and subsequent Texas
authorities     clearly     assumed that the offering               of such services         does
constitute     “banking.”        It should be noted that the aforementioned
authorities     concluded that, under the factual                     situations      that each
addressed,    the existence         and nature of a physical connection between
the bank’s central building and the detached facility                        snd the distance
separating the two were such that the facilities                       became mere physical
extensions of the central buildings.                   Accordingly,       their precedent181
value as to what constitutes               “engaging in business” is questionable
since such holdings were unnecessary.

       If the services actually offered at a “drive-in/walk-up           facility”
do constitute      “banking,”      the second question must be whether the
distance permissibly        separating    the facilities and the existence       and
nature of the physical            connection   between the two authorized          by
statute are such that they could be said to operate at “one place.”
We note that no Texas court has been confronted with this question,
and the last attorney general opinion that addressed the matter was
issued in 1975.        Then the distance      authorized by statute that could
permissibly      separate       the    bank’s    central   building     from     the
“drive-in/walk-up      facility”    was 2,000 feet as opposed to the distance
now permitted,      20,000 feet,     and the definition   of “drive-in/    walk-up
facility”    did not purport to Include within its ambit a detached
building into which customers could enter.

     The only Texas case to consider whether the operation of a drive-
in facility by a bank violates the branch banking prohibition is Great




                                           p. 2273
Honorable Chet Brooks - Page 9       (JM-498)




Plains Life Insurance Company v. First National Bank of Lubbock, 316
S.W.2d 98 (Tex. Civ. App. - Amarillo 1958, writ ref’d n.r.enrein-
after Great Plains].     In Great Plains a lessor         sued his lessee     to
cancel a lease of his premises for bank purposes on the theory that
the bank, by operating     a drive-in    facility    consisting   of drive-in
teller  cages located    across   the street      from the bank’s      central
building and connected directly    and physically     thereto by a pneumatic
tube, was operating    an illegal   branch bank in violation        of article
XVI, section 16, of the Texas Constitution.         The court concluded that
such was not the case:

                As we understand a branch bank it is a separate
            entity  and deposits    made in a branch bank are
            payable there and only there unless the branch
            bank be closed on [sic] demand for the payment by
           ‘the depositor be refused,     then the demand for pay-
           ment will     be against    the mother bank.         Branch
            banks are not mere teller’s          windows.     For the
            convenience of its depositors       these teller’s    win-
            dows were established     to    permit a depositor      to
            drive in and make a deposit,      and there is nothing
            in this record to show that the tellers            of the
            drive in portion of the bank had any more author-
            ity than any of the tellers       in the bank building
            proper.   This drive-in   depository     is nothing more
            than a part of the appellee        bank.    All deposits
            made at the teller’s    windows are placed in appel-
            lee bank. We have not been cited to a Texas case,
            and neither have we found one, directly         determin-
            ing that a bank can or cannot do the things as
            were done under this record.

      The Great Plains court seemed to rely on the reasoning set forth
in a 1927 Kentucky Court of Appeals case, Marvin v. Kentucky Title
Trust Co., 291 S.W. 17 (KY. 1927).     In the 1927 Kentucky case, the
bank sought to operate separate offices    for the purposes of cashing
checks, accepting deposits.  and keeping records of such transactions
in different   parts of a city with no direct        physical connection
between the central building and the ancillary  offices.

     The Kentucky Court of Appeals had earlier     concluded that banks
had no inherent right to branch; they could do so only if specifically
authorized by law. Kentucky law at the time was silent     as to whether
banks could branch.   Accordingly, the court held that they could not.
Bruner v. Citizens’ Bank of Shelbyvllle.   120 S.W. 345 (Ky 1909).    The
court in Marvin framed the issue thus:

           whether   appellee’s  plan to open offices  for the
           receipt   of deposits   and payment of checks will




                                    p. 2274
Honorable Chet Brooks - Page 10        (JM-498)




          constitute    the establishment of branch banks, so
          that the     case may be said     to turn upon the
          definition   of banking.

291 S.W. at 17.     The court of appeals noted that Bruner expressly
recognized the right of a bank under Kentucky law to have as many duly
appointed agents as it needs who could, inter alla,   receive deposits
and forward them to the bank’s central   office.  The court concluded
that such duties were

          incidental   to    the business . . . which do not
          require special     discretion and business acumen.

291 S.W. at 18.    The court     then offered     the following      illustration,
which Great Plains quoted:

               If a bank occupies an entire city block, can it
          be doubted that it can establish         an office     for the
          receipt of deposits and payment of checks at each
          corner of its building and keep separate books at
          each place?         Clearly   the installation        of such
          offices     in the building       is incidental       to that
          business,     and such an arrangement would have no
          injurious     effect upon the financial     management and
          control    of the bank’s business,        as the officials
          charged with those duties do not devote their time
          to the details       of the receipt   of deposit or pay-
          ment of checks.         If such additional      offices     can
          be established       at different    points    in the main
          building under the bank’s control,          no good reason
          appears why they may not be established             elsewhere
          throughout the city of its location           for the same
          purpose.     The convenience to the general public of
          such an arrangement is easily perceived.             The time
          consumed by a great number of depositors            in making
          daily trips       to and from banks of deposit           during
          business hours calls        for some measure of economy
          and renders the arrangement suggested very desir-
          able,    and as it is clearly          incidental       to the
          bank’s business and neither violates             the statute
          nor public policy        and the judgment of the court
          limits its application        to the matter of receiving
          deposits    and paying checks, no good reason can be
          perceived for denying the application.              (Emphasis
          added).




                                    p. 2275
Honorable Chet Brooks - Page 11           (JM-498)




       The claim that the holding of Great Plains stands in Support
of the proposition        that article      342-903,   as presently       amended, is
constitutional       is disingenuous       at best.     First,    reference    to and
apparent reliance on the Kentucky case was unnecessary and inapposite;
the inclusion       of language from the Kentucky case is mere dicta.                 On
the basis of the differing          facts,    the two cases are easily         distin-
guishable.      In the Kentucky case, the bank sought to operate separate
offices    for the purposes of cashing checks, accepting               deposits,    and
keeping records of such transactions           in different    parts of a city with
no direct      physical   connection     between the central       building   and the
ancillary     offices.     In Great Plains.      on the other hand, the central
building and the drive-in        facility    were physically     connected directly
by a pneumatic tube and the facility              was located across the street
from the bank’s building.         The holding in Great Plains is necessarily
limited to its facts.

       Second, the Great Plains         case itself      is unclear     as to what
rationale    it employed in order to determine whether the questioned
practice   constitutes    branch banking.       The Kentucky case upon which the
Great Plains court ostensibly          relied    predicated    its holding upon a
“services    offered”   approach, &,          the services    offered   were merely
incidental    to banking and the offer of such services             did not consti-
tute “banking.”       Therefore,  the establishment       of facilities   that pro-
vided such services       at locations      far removed from the central bank
building were not denominated branch banking.              That is why the court,
while    acknowledging     that Kentucky law did not authorize               branch
banking, concluded that there was no impediment to the bank esta-
blishing such offices      throughout the city.

       Arguably then, Great Plains stands for the proposition                   that the
services     typically     offered      at a “drive-in/walk-up       facility”    do not
constitute     “engag[ingl       in business” and therefore        do not fall within
the ambit of the article           XVI, section 16, proscription.          However, the
Great Plains court also focused upon the existence                  and nature of the
physical     connection       between the bank’s          central   building     and the
detached facility        and the distance separating the two -- a “physical
connection     approach” -- and specifically             held that the facility       was
nothing more than a part of the bank.                It concluded that it was, in
effect,    an extension        of the bank’s central building,           rather than a
branch.     If the drive-in        facility   in Great Plains were a mere physical
extension of the bank’s central building,               then no article     XVI, section
16, question was implicated              and any discussion     of the nature of the
services    offered    is surplusage.         On the other hand, if the nature of
the services       offered      at the drive-in       facility    did not constitute
banking, then any discussion             as to whether the facility      is a branch or
a part (or extension)           of the bank’s central building is superfluous.
At most, Great Plains             stands for the proposition          that a drive-in
facility,     ancillary      to the central       building     though contiguous      and




                                       p. 2276
Honorable Chet Brooks - Page 12            (JM-498)




physically  connected to       it   by pneumatic      tube,   is merely an extension
of the central building.

      In Attorney General Opinion V-1046 (1950). this office                 concluded
that the construction      on another lot directly         across the street from
the bank's "banking house" of a garage that contains a drive-in depos-
it window or windows which accept deposits and permit withdrawals and
that is permanently and structurally            attached to the bank's building
by a tunnel suitable    for passage back and forth did not contravene the
constitutional   prohibition     on branch banking.         The reasoning employed
in the opinion,   just as that employed in the later Great Plains case,
is unclear; it too failed       to distinguish      between a "services       offered"
test,   which of course relies        upon an analysis       of the definition        of
banking and the services       offered    at the off-premises      facility,      and a
"physical connection"     test, which assumes as a given that the services
offered et such a facility        are "banking" and focuses upon the nature
of the "physical    connection"      between the two facilities          in order to
determine whether the additional          facility    is in fact "off-premises."
The opinion also relied       upon and quoted extensively          from the afore-
mentioned Kentucky case and seemed to hold that the services                   offered
did not constitute    banking; yet, at the conclusion           of the opinion,       it
apparently held that the contemplated structure               would become, as it
were, a mere extension of the physical structure of the central build-
ing and would therefore not violate          the statutory prohibition        of cash-
ing checks or accepting       deposits     at any place other than the bank's
"banking house."    It should be obvious, however, that, if the services
offered    do not constitute       "banking,"     then the constitutional         issue
would not come into play; the only limitations                would then .be those
contained in the statute.        There would be no constitutional          impediment
to keep a bank in, say, Amarillo from operating                such a facility         in
Orange. On the other hand, if a structural             connection of some defined
sort is deemed sufficient         to create one facility        out of two, then,
again, no constitutional      question arises.

      The remaining Attorney General Opinions all assumed that the
sorts of services   offered   at "drive-in/walk-up   facilities"    constitute
"banking."    Unlike Great Plains and Attorney General Opinion V-1046,
which arguably concluded that such services         are not "banking" but
rather are incidental     to banking, all implicitly       invoked first     the
"services  offered"  test and assumed that the offering       of such services
is banking; they focused then on the "physical         connection"    test and
analyzed whether the offering      of such services   in various situations
is "off-premises."     Attorney General Opinions H-1292 (1978);          H-1084
(1977); H-277 (1974); H-100 (1973); M-915, M-849 (1971); M-273 (1968);
NW22 (1957); Letter Advisory No. 96 (1975).

     Attorney  General Opinions M-273 (1968).     M-915 (1971).  H-100
(1973), H-277 (1974), and H-1292 (1978) all considered whether the use
of unmanned (or automated) teller machines, when used in various fact




                                       p. 2277
Honorable Chet Brooks - Page 13 (JM-498)




situations,  constituted     "banking."    The services    offered   ranged from
the accepting    and   receipting     of bank deposits,        Attorney    General
Opinion M-273, to the cashing of checks (or withdrawal of cash from
accounts or dispensing of cash packets after an account verification),
Attorney General Opinions M-915, H-277, H-1292, to withdrawal of cash
from bank checking or savings accounts , accepting deposits           to checking
or savings  accounts,    accepting inter-account     transfers,    and accepting
payments to a credit       card account,    Attorney General Opinion H-100,
supra. All of the opinions concluded , either implicitly          or explicitly,
that such services,    the same sorts of services       typically   offered by a
"drive-in/  walk-up facility,"        are "banking."      In Attorney General
Opinion M-273, w,         this office   declared:

           [Tlhe user of a mechanical contrivance      to perform
           these operations    will not render them non-banking
           operations which are outside the general and usual
           rules governing and restricting       branch banking.
           "Branching" is defined by both state and federal
           law in terms of end results       and not in terms of
           any instrumentality       or agency by which such
           results    are accomplished   . . . . In our opinion
           the    facilities   described   in your letter      are
           clearly banking facilities.

      The operation of unmanned (or automated) tellers      (sometimes known
as CBCTs, i.e.     Customer-Bank Communication Terminals)       was finally
authorized b-the    1980 amendment adding subsection   (b) to article    XVI,
section   16, of the Texas Constitution     after    an earlier     amendment
authorizing   their operation was defeated in 1977.      -See V.T.C.S. art.
342-903c.

       Attorney General Opinion M-849 and Attorney General Letter Advis-
ory No. 96. which addressed whether the 1971 and 1975 amendments to
article    342-903. respectively    , were constitutional,    also assumed that
the sorts of services     typically    offered at a "drive-in/walk-up     facil-
ity" are "banking."      Attorney General Opinion M-849 quoted with ap-
proval from Kaliski v. Gossett,        109 S.W.2d 340. 344 (Tex. Civ. App. -
San Antonio 1937, writ ref'd.).       which contains    the following language:

           In the case of In re Prudence Company (C.C.A.) 79
           F.(2d) 77, 79, we find the following definition   of
           a bank:   'Strictly  speaking the term bank implies
           a place for the deposit of money, as that is the
           most obvious purpose of such an institution';    the
           opinion continues:     'And all of the cases, so far
           as we are advised, which have construed the words
           "banking corporations"     as used in the Bankruptcy
           Act, have regarded the legal       power to receive




                                     p. 2278
Bonorable Chet Brooks - Page 14 ,(JM-498)




            deposits    as    the    essential     thing.'      [Citations
            omitted].

As this   office   declared   in Attorney     General Opinion WW-22(1957):

                While the powers of a state bank in Texas are
            enumerated in Article      342-301, V.T.C.S.,    most of
            the    decisions    throughout     the  United    States
            recognize    that the ordinary essential    features of
            the banking business        are the power to accept
            deposits    of money repayable to the order of the
            depositor,     the discounting    of commercial paper,
            the issuance of negotiable      notes, and the lending
            of money upon security.       Warren v. Shook, 91 U.S.
            704. 23 L. Ed. 421, 9 C.J.S. 31; Zollmann, Banks
            and Banking, Volume I, Section 67.

                Many of the decisions       and authorities    through-
            out the United States recognize          that not all of
            these banking functions need be exercised in order
            to constitute    an institution     a bank. The exercise
            of some of the functions            of banking such as
            loaning money, selling       bonds, receiving     deposits
            or cashing checks may be sufficient           to bring the
            institution    within the regulations       passed by the
            state relative    to banks.      Ealiski v.~ Gossett~, 109
            S.W.2d 340 (Tex. Civ. App. 1937); Zollmann, Banks
            and Banking, Volume I, Section 67.

See also Brenham Production         Credit   Association     v. Zeiss.   264 S.W.2d 95
(Tex. 1953).

      Indeed, a brief    submitted to this office     by the Texas Bankers'
Association   in connection with Attorney General Opinion H-1084 (1977)
claimed that the taking of deposits was essential       to the definition of
a "banking business" and cited U.S. v. Philadelphia       National Bank, 374
U.S. 321 (1963) for the following       proposition:   "Commercial banks are
unique among financial     institutions   in that they alone are permitted
by law to accept demand deposits."       The brief went on to cite a series
of cases from various jurisdictions,        including Texas, essentially  in
support of that proposition.

       It is suggested that the recent case of Board of Governors of
Federal Reserve System v. Dimension Financial Corporation,             U.S.
-,        106 S.Ct. 681 (1986) [hereinafter     Board of Governors],  which
strictly    construed the definition   of "bank" for purposes of the Bank
Holding Company Act of 1956. 12 U.S.C. $51841 et seq., is relevant to
this discussion.      The Bank Rolding Company Act defines "bank" as any
institution     "which (1)  accepts   deposits- that the depositor   has e




                                        p. 2279
Honorable Chet Brooks - Page 15      (JM-498)




legal right to withdraw on demand, and (2)        engages in the business of
making commercial loans."      12 U.S.??%1841(c)      (Emphasis added.)     In
Board of Governors, the Supreme Court struck down board rules promul-'
gated pursuant to the act that it felt         employed an overly-expansive
definition   of "bank."     Under the Bank Holding Company Act (which
applies both to state and national banks), a "bank" must both accept
demand deposits    and engage in commercial banking.        If suchadefini-
tion were appliedto      the services   typically   offered   at a "drive-in/
walk-up facility,"    it is argued, then such a facility         could not be
held to engage in banking.     The case is inapposite     for three reasons.

      First,   the provisions   of the Bank Holding Company Act are
inapplicable   to both the McFadden Act and Texas case law definition of
"bank."    This office  noted the following in Attorney General Opinion
H-606 (1975):

           Pursuant to its authority          to assess state law in
           the regulation       of bank holding companies, Whitney
           National Bank in Jefferson          Parish v. Bank of New
           Orleans 6 Trust Co.,          379 U.S. 411 (1965).      the
           Federal Reserve Board has held Texas' branch bank-
           ing laws to be inapplicable          to stock ownership by
           holding      companies.     Application    of Farmers and
           Mechanics       Trust   Company of       Childress.  Texas
           (Federal Reserve Bulletin,         January, 1960, pp. 14,
           16);     cf.    Application     of    Trans-Nebraska   Co.,
           Lincoln>ebraska         (Federal Reserve Bulletin,     May,
           1963, pp. 633, 634).        This ruling was based on the
           legislative      history of the Banking Holding Company
           Act of 1956 which states in part:

           The purposes        of branch banking laws are not
           identical     with the purpose of this bill to control
           bank holding       companies . . . It is believed    the
           bill contains adequate provisions       to regulate bank
           holding    company operations     without an arbitrary
           tiein   [sic]    with branch banking laws.     1956 U.S.
           Code Cong. Ad. News, 84th Congress 2492-2493.

      Second, the definition   of "branch bank" set forth in the McFadden
Act is of greater      relevance   to this inquiry   than the definition
contained in the Bank Holding Company Act.      The McFadden Act provides
the following at 12 U.S.C. 936(f):

           The term 'branch' as used in this section shall be
           held to include any branch bank, branch office,
           branch agency, additional   office, or any branch
           agency, additional office,  or any branch place of




                                   p. 2280
Honorable Chet Brooks - Page 16         (X4-498)




            business . . . at which deposits          are received,    or
            checks paid, or money lent.

The Supreme Court has declared       that

            the term 'branch bank' at the very least includes
            s    place for receiving      deposits  or paying checks
            or    lending     money apart      from   the    chartered
            premises;     it may include      more.    It should be
            emphasized that, since [the act] is phrased in the
            disjunctive,      the offering    of any of the three
            services mentioned in that definition        will provide
            the basis     for   finding   that 'branch'   banking is
            taking place.

First National    Bank in Plant City,       Florida   v. Dickinson,   396 U.S.   122,
134 (1969).

      While the determination    as to what constitutes        a branch is
admittedly  a matter of federal      law. the court's      construction     is
persuasive since the act was intended to foster "competitive       equality"
between state and national    banks.   First National Bank of Logan v.
Walker Bank 6 Trust Co., 385 U.S. 252, 261 (1966).      For this reason, a
branch of a national banking association    may be established    only when,
where, and how state law would authorlee a state bank to establish        and
operate such a branch.   St. Louis County National Bank v. Mercantile
Trust Company National Association,      548 F.2d 716 (8th Cir.        1976),
cert. denied 433 U.S. 909 (1977).

      Third, the statute        authorizes   a “drive-in/walk-up      facility"    to
offer "banking services"         without either specifying       or limiting    just
what services       may be        offered.    The fact       that    any specific
"drive-in/walk-up     facility"      does not offer   a full range of "banking
services"    is irrelevant      when the issue is whether the statute           that
authorizes the offering       of "banking services"     is constitutional.

       In spite   of the language seemingly to the contrary               in Great
Plains and Attorney General Opinion V-1046, we think that the great.
weight of authority      in Texas and in other jurisdictions,           as well as
the plain language of article          342-903, support the proposition         that
the sorts     of   services    typically     offered    at a "drive-in/walk-up
fscility."    which at a minimum include withdrawal of cash from and
accepting deposits     to banking accounts,       do constitute   "banking."     The
remaining issue is whether the sort of physical               connection    and the
authorized distance      separating    the central building      and the facility
permitted    by the statute        violate    the constitutional       prohibition
against "engag[ingl     in business at more than one place."           We conclude
that, taken together,      they do.




                                     p. 2281
Honorable Chet Brooks - Page 17      (JM-498)




       No Texas case has defined specifically     the meaning of the phrase
“one place” for purposes of article    XVI, section    16(a).    To the extent
that Great Plains can be said to construe the phrase, the case stands,
only for the proposition    that a bank that operates a “drive-in/walk-up
facility”    located across the street from the bank’s central building
and connected therewith by a pneumatic tube can be said to engage in
business in not more than one place.         Since the fact situation     con-
sidered    therein. is almost identical     to that considered        in Great
Plains,   Attorney General Opinion V-1046 (1950) can also be so ch=
terized.      Both Attorney   General Opinion M-849       (1971)   and Letter
Advisory No. 96 (1975) discussed        specific    proposed amendments to
article   342-903, but neither attempted to define what actually cocsti-
tutes “one place .‘I

       The claim that both stand in support of the proposition           that
article   342-903, as presently amended, is constitutional     mischaracter-
izes both.     First,  Attorney General Opinion M-849 specifically    did not
rule on the constitutionality     of the 1957 amendment or the 1963 amend-
ment , amendments which expanded the definition     of “banking house” far
less dramatically     than did the 1985 amendment:

           This Office has never issued an opinion as to the
           constitutionality      of the 1957 amendment or the
           1963 amendment to article     342-903, and nothing in
           this   present    opinion  is intended   as a ruling
           thereon.

      Second, Attorney  General Opinion M-849,    which considered the
constitutionality   of what subsequently    became the 1971 amendment,
declined to hold as a matter of law that the proposed amendment did
not cdntravene the constitutional prohibition:

           Both H.B. 566 [which was substantially        enacted as
           the 1971 amendment] and S.B. 409 have eliminated
           from the concept and definition     of ‘banking house’
           the physical connection aspect of the statute,        as
           it now exists,  and authorize a banking house to be
           connected only by closed      circuit    television   or
           other similar means of communication.

                If this office      were to hold that a ‘banking
           house’ could be authorized to extend its place of
           business     500 feet or 1,850 feet      from its main
           banking house, connected only by closed          circuit
           television      or other similar means of communice-
           tion,    then we would have to conclude that this
           manner of connection         between the main banking
           house and its drive-in        windows, or office    faci-
           lities,     irrespective    of the distance,   would be




                                  p. 2282
Honorable Chet Brooks - Page 18        (JM-498)




           compatible with the constitutional     provisions.      We
           cannot so conclude as a matter of law, because         the
           bills   fail   to provide   sufficient     factors     and
           guidelines   to support that conclusion.

The opinion failed to specify   exactly what “factors” or “guidelines”
would have been sufficient    to warrant a conclusion.    The opinion
concluded that the meaning of the phrase “one place” in article     XVI,
section 16,

           is constitutionally    a mixed question of law and
           fact,  [and] any ultimate    finding of ‘one place’
           under the Constitution   must take into account all
           of the relevant facts and circumstances pertaining
           to the doing of the banking business        at ‘one
           place. ’

The opinion then declined to rule on any hypothetical           question or any
mixed question of law and fact that might conceivably           arise in apply-
ing the proposed statutes to any given state of facts.

       Attorney General Letter Advisory No. 96 (1975), Considering what
was subsequently     enacted as the 1975 amendment that permitted          the
physical connection     separating  the central building     and the detached
facility    to be merely a closed circuit     television   cable and expanded
the permissible    distance separating the two to 2,000 feet,       noted the
paucity of authority      at the time Attorney     General Opinion M-849 was
issued and declared:

           In the context       of Senate Bill No. 642 and its
           limitation    of the distance of separation       [expanded
           from 1,850 feet to 2,000 feet],         we can determine
           no meaningful distinction      between a connection by
           pneumatic tube and one by closed            circuit   tele-
           vision     cable.     In both    instances     the bank’s
           business in [sic] conducted in ‘one place’ within
           the meaning of section 16, so long as the drive-in
           facility    is limited to teller    services.     (Emphasis
           added).

The opinion      failed to explain     by virtue     of   what constitutional,
statutory,    or case law authority    such facilities     could be limited to
teller   services.

      So at most,    Attorney  General Opinion M-849 stands for        the
proposition   that the question whether a “drive-in/walk-up    facility”
located 1,850 feet from the bank’s central building is a branch is a
mixed question of law and fact.    Attorney General Letter Advisory No.
96 at most stands for the proposition    that. in en instance in which a




                                   p. 2283
Honorable Chet Brooks - Page 19 (JM-498)




“drive-in/walk-up     facility”    is located not more than 2,000 feet from
the bank’s central building,        a connection as tenuous as a closed cir-
cuit television    cable permits banking business to be conducted in “one
place. ” When these opinions were issued there was an admitted dearth
of judicial    authority in this area, from either Texas or other juris-
dictions.     We need not determine, however, the meaning of “one place”
for purposes of article       XVI, section 16, because a 1980 constitutional
amendment has done it for us.

       In November of 1980, the voters of Texas adopted a constitutional
amendment that re-enacted        article     XVI, section 16, and added what is
now subsection       (b),  permitting     banks to operate detached automated
teller   facilities.      An earlier    attempt to amend the section to permit
the operation of such facilities           failed of passage in 1977. In order
to permit the operation of such detached facilities,             a constitutional
amendment was necessary         because.      absent an amendment,     such opera-
tion would have violated            the constitutional     proscription     against
“engag[ing]      in business   at more than one place.”         Attorney General
Opinions H-1292 (1978); H-277 (1974); H-100 (1973); M-915 (1971).                The
amendment as adopted, provided the following:

               Section 1. That Article XVI, Section 16, of the
            Texas Constitution be amended to read as follows:

               ‘Sec.    16. Corporations     with   banking   and dis-
            counting   privileges

               (a)   The Legislature     shall    by general    laws,
           authorize    the incorporation      of corporate    bodies
           with banking and discounting privileges,        and shall
           provide for a system of State supervision,        regula-
           tion and control     of such bodies which will ade-
           quately    protect   and secure      the depositors     and
           creditors   thereof.

                No such corporate body shall be chartered until
            all of the authorized capital   stock has been sub-
            scribed and paid in full in cash.      Except as may
            be permitted by the Legislature    pursuant to Sub-
            section   (b) of this Section   16, such body cor-
            porate   shall   not be authorized    to engage in
            business   at more than one place which shall be
            designated in its charter.

                No foreign corporation,   other than the national
            banks of the United States         domiciled    in this
            State, shall be permitted to exercise        banking or
            discounting privileges    in this State.




                                     p. 2284
Bonorable   Chet Brooks - Page 20       (JM-498)




                  (b)   If it finds that the convenience         of the
            public will be served thereby, the Legislature           may
            authorize      State and national       banks to establish
            and operate unmanned teller            machines within the
            county or city of their domicile.             Such machines
            may perform all       banking functions.        Banks which
            are domiciled within a city lying in two or more
            counties may be permitted to establish          and operate
            unmanned teller      machines within both the city and
            the county of their          domicile.     The Legislature
            shall provide that a bank shall have the right to
            share in the use of these teller              machines, not
            situated      at a banking house. which are located
            within the county or the city of the bank's domi-
            cile.     on a reasonable,      nondiscriminatory     basis,
            consistent      with anti-trust   laws.     Banks may share
            the use of such machines within the county or city
            of their domicile with savings and loan associa-
            tions and credit unions which are domiciled in the
            same county or city.'         (Emphasis added).

      When properly    construing   a constitutional     provision,   we are
required to give effect     to the intent of the people who adopted it.
Director of the Department of Agriculture      and Environment v. Printing
Industries Association    of Texas, 600 S.W.2d 264 (Tex. 1980); Cox v.
Robison, 150 S.W. 1149 (Tex. 1912).      The meaning of a constitution    is
fixed when it is adopted and is not different        at any subsequent time.
Jones v. Ross, 173 S.W.2d 1022 (Tex. 1943); Cramer v. Sheppard, 167
S.W.2d 147 (Tex. 1943).     In attempting to determine such intent,

            [c]onstitutional    provisions,     like statutes,  are
            properly to be interpreted      in light of conditions
            existing     at the time of       their  adoption,   the
            general spirit    of the times, and the prevailing
            sentiments of the people.

Mummev. Marrs. 40 S.W.7.d 31,        35 (Tex.    1931).   As the Texas Supreme
Court later declared,

            [I]n determining the meaning, intent and purpose
            of a constitutional     provision  the history   of the
            times out of which it grew and to which it may be
            rationally   supposed to have direct     relationship,
            the evils intended to be remedied, and the good to
            be accomplished,    are proper subjects of inquiry.

Markowsky v. Newman. 136 S.W.Zd 808. 813 (Tex. 1940);                  Travelers'
Insurance Co. v. Marshall, 76 S.W.2d 1007 (Tex. 1934).



                                     p. 2285
Bonorable‘Chet      Brooks - Page 21         (JM-498)




      When subsection    (b) was added in 1980, which by its very terms
serves as an exception        to the constitutional       proscription     against
banking "at more than one place,"           and the entire      section   was re-
adopted,    the operation    of certain     detached facilities       was already
permitted by statute.       We think that a court,       relying    on the above
rules of constitutional     construction,    would probably conclude that the
inclusion    of the phrase "banking house" in subsection              (b) and the
re-adoption     of the entire      section    in 1980 served       to place     the
imprimatur of the people          on the then-existing         statutory    scheme
defining    "banking house,"    expanding and defining,        as it were, the
constitutional    phrase "one place."      The statutory amendment of article
342-903 then in effect provided the following:

                  No State, national or private bank shall engage
              in business in more than one place, maintain any
              branch office,     or cash checks or receive deposits
              except in its own banking house.                For purpose* of
              this article    'banking house' means the building in
              whose offices    the business of the bank is conduct-
              ed and which is functionally              one place of busi-
              ness, including      (a) office      facilities       whose near-
              est wall is located within five hundred (500) feet
              of the nearest wall of the central building and is
              physically    connected to the central               building      by
              tunnel,    passageway or hallway providing                  direct
              access between the central building                 and the con-
              nected office     facility     or by closed circuit           tele-
              vision or pneumatic tube or other physically                    con-
              nected delivery       device,     and (b) in addition,             if
              authorized in the manner hereinafter               provided, not
              more   than one (1) automobile               drive-in     facility
              whose nearest       boundary is          located      within     two
              thousand (2,000)       feet of the nearest wall of the
              central building but more than five hundred (500)
              feet   therefrom and is connected to the central
              building by tunnel, passageway or hallway provid-
              ing direct access between the central building and
              the connected automobile drive-in                facility     or by
              closed circuit     television,      pneumatic tube or other
              physically    connected delivery          device.       The entire
              banking house shall for all purposes under the law
              be considered      one integral         banking house.           The
              term 'automobile drive-in          facility'      as herein used
              shall mean a facility           offering      banking services
              solely   to persons who arrive at such facility                    in
              en automobile and remain therein during the trans-
              action of business with the bank.

      Since     the adoption of the 1980 constitutional                amendment, article
342-903,      V.T.C.S., has been amended three times.                The maximumdistance



                                           p. 2286
Eonorable   Chet Brooks - Page 22         (JM-498)




that may permissibly             separate    the bank's     central      building   from a
"drive-in/walk-up         facility"     was increased      from 2,000 feet        to 3,500
feet to 10,500 feet to 20,000 feet,               almost a trebling         in one session
followed by a doubling in the next -- a ten-fold                      increase during the
past six years.           The definition       of "drive-in      walk-up facility"      was
amended during the past two legislative               sessions with the effect         that
a multi-story        office     building    now falls    within its ambit.          If the
legislature       may permissibly         double (or triple)          in each succeeding
legislative      session     the maximum distance        that may separate a bank's
central     building     and its "drive-in/walk-up           facility"      (which may now
fairly    be construed to be an office             building),       the maximum boundary
conceivably       could soon be coterminous with the boundaries                     of the
state.      Such a situation         is certainly     one which the constitutional
prohibition      is intended to prevent.

       Clearly,    in passing upon the constitutionality     of a statute,   we
are required to begin with a presumption of constitutionality.             Smith
v. Davis, 426 S.W.2d 827 (Tex. 1968); Ex parte Smith. 441 S.W.2d 544
(Tex. Grim. App. 1906).        A statute should not be declared unconstitu-
tional unless it is plainly        so.   Maud v. Terrell.  200 S.W. 375 (Tax.
1918).     Article    342-903, V.T.C.S.,    as amended, is plainly    so.   The
meaning of the words of a constitution          at the time they were placed
therein cannot be altered        or amended by subsequent legislation.       Ex
parte Giles. 502 S.W.2d 774 (Tex. Cr. App. 1973).          The 1985 statutory
amendments to V.T.C.S.         article    342-903  about which you inquire
manifestly were attempts to do so.

      We are not unmindful of         the effect    of our decision.    But as the
Texas Supreme Court declared           in Koy V. Scheider.     218 S.W. 479, 481
(Tex. 1920). the consequences          of constitutional   interpretation   do not
control.

            No matter how far-reaching   and disastrous  would be
            the consequences . . . we would not decline        to
            make the declaration    if such was believed    to be
            the true intent of the language of the Constitu-
            tion.

Quoted in Director of the Department of Agriculture  and Environment v.
Printing Industries   Association  of Texas, -.     Cramer v. Sheppard,
167 S.W.2d 147 (Tex.      1943).   See Shepherd v. San Jacinto   Junior
College District,   363 S.W.2d 742-x.     1962).

      Accordingly,    in the situation    which gave rise to your request, we
conclude    that the central      building    of the merged bank which the
resulting bank now regards as its "drive-in/walk-up         facility"  is, as a
matter of fact and law. an impermissible          "branch."   We conclude that
the 1985 amendment to article            342-903. V.T.C.S..  which extends the
permissible    distance separating a "drive-in/walk-up      facility"  from the




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Honorable Chet Brooks - Page 23        (JM-498)




bank's central building to 20,000 feet and permits such facility            to be
a "building having a secured teller  lobby" is unconstitutional.

                                   SUMMARY

              The      1985  amendment to        article  342-903,
          V.T.C.S..     which extends the permissible     distance
          separating a "drive-in/walk-up        facility" from the
          bank's central building to 20,000 feet and permits
          such facility     to be a "building     having a secured
          teller    lobby" is unconstitutional.


                                                I
                                              P I ’ nnu-.
                                               Very truly
                                                   I
                                                            yours



                                             -JIM       MATTOX
                                                Attorney General of Texas

JACKHIGHTONER
First Assistant Attorney     General

MARYKELLER
Executive Assistant     Attorney   General

ROBERTGRAY
Special Assistant     Attorney   General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General




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