Hon.    P.   Frank   Lake,   page 2    (WW-12&)




       otherwise,   when and to the extent that the District of Colum-
       bia or territory  or other Lstate in which such foreign bank or
       trust company is organized and ha s, its principal office grants
       authority to serve in like fiduciary capacity to a bank or trust
       company organized under the laws of, and having its princi-
       pal office in the State of Texas.

            (b) Before qualifying or serving in the State of Texas in
        any fiduciary capacity,     as aforesaid,    such a foreign bank or
       trust
        of the State of Texas (1) a copy of its charter,         articles    of
       incorporation    or of association,     and all amendments         thereto,
        certified by its secretary    under its corporate       seal; (2) a duly
        executed instrument in writing,       by its terms of indefinite
       duration and irrevocable,       appointing the Secretary        of State
       and his successors     its agent for service of process upon whom
       all notices and processes      issued by any court of this state
       may be served in any action or proceeding            relating to any
       trust, estate,    fund or other matter within this state with res-
       pect to which such foreign bank or trust company is acting
       in any fiduciary capacity,      including the acts or defaults of
       such foreign bank or trust company with respect to any such
       trust, estate or fund; (3) a written certificate          of designation,
       which may be changed from time to time thereafter                by the
       filing of a new certificate    of designation,     specifying the
       name and address of the officer,         agent or other person to
       whom such notice or process         shall be forwarded by the
       Secretary    of State.  Upon receipt of such notice or process,
       it shall be the duty of the Secretary       of State forthwith to for-
       ward same by registered        or certified mail to the officer,
       agent or other person so designated.           Service of notice or
       process upon the Secretary        of State as agent for such a
       foreign bank or trust company shall in all ways and for all
       purposes have the same effect as if per,sonal service had
       been bad within this state upon such foreign bank or trust
       company. II (Emphasis       added)

        Subparagraph   (a) authorizes a ‘foreign bank or trust company,
having the corporate   power to so act’ to be appointed and to serve
in Texas in a fiduciary capacity to the extent that the place of such for-
eign bank’s organization   permits a Texas bank to act in like capacity
in such state.
.   -




        Hon.    P.        Frank   Lake,   page 3   (WW-12B%)




                   Subparagraph    (b) requires that such bank file certain docu-
        ments     with the Secretary    of State before qualifying or serving in
        Texas     in a fiduciary ;capacity.

                You have r,equested            our opinion   specifically   upon the follow-
        ing three questions:

                1. Is your office authorized to file the instruments                 enumer-
        ated in subsection (b) of Section 105a Texas Probate Code?

                     2.     Is your office   authorized   to charge   a fee for filing   such
        papers?

                 3. Is your office authorized to issue a Certificate of Recip-
        rocity to a foreign bank or trust company which submits such papers
        for filing?

                 With respect to the first of these questions,  it is our opinion
        that you are not only authorized but required to accept and file the
        documents enumerated in subsection       (b) when submitted to you by
        “such a bank or trust company, 11as defined in subsection       (a) of the
        statute, that is, a foreign bank or trust company having the power
        to act in a fiduciary capacity,   Although the statute specifically    dir-
        ects itself only to the foreign bank or trust company,     directing it to
        file such documents with your office, there is an implied duty on
        your office to accept and file such documents.      You are not required
        or authorized to pass on whether a Texas bank or trust company
        would be permitted by the State of such foreign bank’s domicile to
        act in the specific fiduciary capacity in which “such bank or trust
        company” seeks to act in Texas; you should, however,         satisfy your-
        self that the institution seeking to file such documents is in fact qual-
        ified to act in some fiduciary capacity within the state of its domicile.

                 With respect to question No. 2, it is our opinion that your
        office is not authorized to charge such a fee.   Section 105(a), Texas
        Probate Code, does not specifically   authorize such a fee, and such
        authority is not generally implied.   Cf. McLennan County v. Boggess,
        104 Tex. 311, 137 S. W. 346, answer to certified question conformed
        to 139 s. w. 1054.

                With respect to Question No. 3, it is our opinion that you are
        not authorized to issue a Certificate of Reciprocity .to such foreign
        bank or trust company,~ since the statute does not require that you
Hon.   P.   Frank   Lake,   page 4    (WW-1288)




determine the reciprocity,    if any, of the Texas statutes and those
of the foreign bank or trust company’s     domicile.  You are, however,
authorized to furnish such foreign bank or trust company an instru-
ment indicating that it has filed with you the documents enumerated
in subsection  (b) of’Sec. 105(a) of the Texas Probate Code.



                                     SUMMARY

                  The Secretary  of State shall file instruments
              submitted by a foreign bank or trust company in
              accordance   with subsection  (b) of Sec. 105(a) of
              the Texas Probate Code, may not charge a fee
              for so doing and shall, if requested,    furnish
              said bank or trurt company an instrument       in&
              eating that raid documents, have been filed.

                                          Very truly yours,

                                          WILL WILQON
                                          Attorney General of Texaa




                                                  Coleman   Gay,   Iq



CG:lmc

APPROVED:

OPINION     COMMITTEE:

W. V. Geppert,       Chairman
Arthur, Sandlin
Henry Braswell
Virgil Pulliam
John Reeves

REVIEWED       FOR THE ATTORNEY           GENERAL
BY:    Houghton Brownlee
