            THEAITORNEY               GENERAL
                          OFTEXAS




Honorable H. A. Jamison
Commissioner, Department of Banking
Austin, Texas
Dear Sir:                     Opinion No. 0-5612-A
                              Re: Liability of banks in connection
                                  with the rights of survivors in
                                  respect to a joint account, etc.
Your request concerning the above subject   matter   is   as   follows:
     "A few days ago we observed aoondensed reference to your
     Opinion No. 0-5612 in your September monthly report, this
     being an opinion addressed to the Honorable Geo. h. Shep-
     pard, and having to do with the liability of banks in con-
     nection with the rights of survivors in respect to a joint
     account maintained by the bank and in respect to the ques-
     tion of access to a joint safety deposit box. This con-
     densed reference reads as follows:
    ~~f0-5d12TO:  George H. Sheppard, Comptroller of Public Ac-
    counts.  Date: September 30, 1943.     Since Arts. 541d and
    54le, R.C.S., have oeen repealed by Acts 1943, 48th Leg.,
          H.B. 79, Ch. 97, 7. 12'7,Art. 7144~3,Sets. 16a, 16b,
    ~:As:~.s.,governs the liability of banks for allowing the
    survivor depositor of a joint account to check on the account
    or to have access to a joint safety deposit box.'
     "Accordingly we wrote you under date of April 4, requesting
     a copy of the opinion which you transmitted to us under date
     of April 7. We have read this opinion along with your opin-
     ion No. O-5836 and we are wondering if any conflict exists
     in respect to the subject matter.
    Although the Texas Ranking Code repealed those sections of
    the law set out in your opinion No. O-.%&Z the code contained
    new sections on the subject matter; to-wit, Article 10
    Chapter 7 and Article 6 Chapter 9 of the Code, to which your
    attention is invited. We would appreciate your further
    views in the matter."
Honorable H. A. Jamison, page 2      O-5&Z-A


Sections 1 and 1-A of Senate Bill No. 61, Ch. 117, of the l+lst
Legislature (192Y), being Articles 541d and 541e, respectively,
of Vernon's codification of the Revised Civil Statutes, are as
follows:
     "SECTION 1. When a deposit shall be made in any bank organ-
     ized and operating under the laws of this State or in any
     natlonal 'bankor other banking institution doing 'businessin
     this State by any person in the name of such depositor or
     in the name of such depositor and another person and with
     notice to the bank that such deposit shall be paid to either
     or the survivor of them, such deposit and any additions there-
     to made by either of such persons after the making thereof,
     shall be held for the exclusive use of such persons and may
     be paid to either during the lifetime of 'bothor to the sur-
     vivor after the death of one of them, and such payment shall
     be a valid and sufficient release and discharge to such bank
     or banking institution for all payments made on account of
     such deposit prior to the receipt by such bank or banking
     institution of notice in writing not to pay such deposit
     in accordance with the terms thereof.
    "SEC. 1-A. That when any safety deposit box has been* or
    shall hereafter be, rented by any bank, savings bank or
    trust company transacting business in this State, in the
    names of two or more persons, with the right of access given
    to either,.or to the survivor or survivors of said persons,
    either of such persons, whether the other be living or not,
    shall have the right of access to such deposit box and may
    remove therefrom the contents thereof, and in all such cases
    where such removal shall have been made the said oank, savings
    bank, or trust company, shall be exempt from all liability
    whatsoever to any person whomsoever for permitting such
    access to, or removal of contents from, said safety deposit
    box."
This Act was expressly repealed ‘by the Texas Banking Gode of 1943.
(H.B. No. 79, Ch. y'/,l+tith
                           Leg., G. L., p* 127)
As pointed out by you, the Banking Code contains express provi-
sions upon these two matters thus contained in the repealed sta-
tutes, oeing Chapter Vii, Art. 10, and Chapter IX, Art. 6, res-
pectively, as follows:
     "A bank may pay a resent or future deposit, payaole to or
     on the order of (a7 any one of two or more persons, or (b)
     a minor, married woman, or other person under disaoillty,
     or in form payable to or on the order of one person, for the
     oenefit of or in trust for another, without the terms of
     the trust being disclosed to the bank in writing, to any one
Honorable H. A. Jamison, page 3        0-5612-A


     of such joint depositors (before or after the death of the
     other joint depositor or depositors), or to such minor,
     married woman,,or other person under disability, or on the
     death or disaoility of the trustee, to the beneficiary of
     such trust."
     "Any state, national or private bank may maintain safety
     deposit boxes and rent the same. In all such transactions
     the relationsnip of the 'bankand the renter shall, in the
     absence of a contract to the contrary, be that of lessor and
     lessee and landlord and tenant and the rights and liabilities
     of the bank shall 'begoverned accordingly, and the lessee
     shall be deemed in law for all purposes to be in possession
     of the box and the content thereof, If a safety deposit box
     is held in the name of two (21)or more persons jointly, any
     one of such persons shall be entitled to access to such box
     and shall oe permitted to remove the content thereof and the
     bank shall not be responsiole for any damage arisin$io;h;ason
     of such access or removal oy one of -aid persons.    '
     box rental is delinquent for six (6) months, the bank after
     at least sixty (60) days' notice by mail addressed to the
     lessee at his address on the books of the bank, may, if the
     rent is not paid within the time specified in said notlce,
     open the 'boxin the presence of two (2) executive officers
     of the bank and a notary public and place the content of the
     box in a sealed envelope or container 'bearingthe name of
     the lessee. The bank shall then hold the content of the box
     and the damages in connection therewith. If such rental,
     cost and damages are not paid within two (2) years from the
     date of opening of such box, the bank may sell any part or
     all of the content at public auction in like mannerand
     upon like notice as is prescribed for the sale of real
     property under deed of trust."
The 'TexasBanking Code, therefore contains the law applicaole to
the suoject formerly governed oy Articles .541dand 541e.
Our opinion No. O-5612 addressed to Honorable Geo. H, Sheppard,
Comptroller of Public Accounts,) dealt with the question of whether
 or not Article 71&a, Sec. lo, Vernon's Revised Civil Statutes,
superseded Articles 541d and 5l+le. Article 7144a was enacted by
the 43rd Legislature (1933), and Sec. lo provides as follows:
      "(a) No safe deposit company, trust company, corporation,
      bank or other institution, person or persons, having in
      possession or under control securities, deposits, or other
      assets belonging to a decedent who was a resident or non-
      resident, or belonging to such a decedent and one or more
      persons, shall deliver the same to the executors, adminis-
      trators, heirs or legal representatives of said decedent,
      or to the survivor or survivors when held in the joint names
                                                         ._.,.




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


    of a decedent and one or more other persons, or upon their
    order or request, unless notice of the time and place of
    such intended delivery or transfer be served upon the Gomp-
    troller at least ten days prior to said delivery or trans-
    fer, and delivery to 'bemade only in the presence of the
    Comptroller or his duly authorized agent, who may be the
    County Judge of the county in which said transfer transpires,
    unless the Comptroller in writing consents to the transfer
    without his presence. And it shall he lawful for the said
    Comptroller or his representative to examine all of said
    securities, deposits or assets at the time of such dellvery
    or transfer, Fail.ureto serve such notice or failure 'to
    allow such examination shall render such safe deposit com-
    pw , trust company, corporation, oank or other institution,
    person or persons liable to the payment of the amount of
    the tax or interest due or thereafter to become due upon
    said securities, deposits or other assets delivered or trans-
    ferred, and in addition thereto, a penalty of not less than
    one thousand or more than five thousand +ollars; and the pay-
    ment of such tax and interest thereon, or the penalty above
    prescribed, or both, may be enforced in an action brought by
    the Comptroller in any court of competent jurisdiction.
     l'(b)When it is made to appear to a County Judge in this
     State that a safe deposit company, trust company, bank, per-
     son or corporation has in its possession, or under its con-
     trol papers of a decedent or whose estate such court has
     jurisdiction, or that the decedent has leased from such a
     corporation a safe deposit box, and that such papers or
     such sal'cdeposit box may contain a twill of the decedent,
     or a deea to a ourial plot in which the decedent is to hoe
     interred‘ or a policy of insurance issued in the name of
     the decedent and payable to a named 'beneficiary,he may
     make an order directing such deposit company, trust com-
     pany, onnk, person, or corporation to permit a person named
     in the order to examine such papers or safe deposit box in
     the presence of himself, or his duly authorized representa-
     tive, or a representative of the Comptroller, and an officer
     of such safe deposit company, trust company, Dank or cor-
     poration, or agent of such person. and if such documents are
     found among such papers, or in such box, to deliver said
     will to the Clerk of the Probate Court of such co;:ntyor
     said deed to such persons as may be desjgnated in such or-
     der, or salcipolicy of insurance to the beneficiary named
     therein. 'TheClerk of said court shall furnish a receipt
     upon the delivery of the will to him."
We answered the Comptroller's inquiry as follows:
Honorable H. A. Jamison, page 5    0-5612-A


     "Any doubts existing therefore as to whether said Articles
     541d and 541e are still in effect have been dispelled by
     the express repeal of these Articles by the 4bth Legisla-
     ture."
The writer of that opinion conferred with the Comptroller and was
advised that information as to the repeal of Articles 5lJd and
54le sufficiently answered his inquiry, and further development
of the matter was deemed unnecessary. The question of the effect
of the Banking Code on Article 7144a was not passed upon in the
opinion.
An answer to your present inquiry requires that we consider
whether the Banking Code repealed Article 7144a, Sec. 16. The
settled law in Texas is reflected in the following text statement:
     "According to numerous pronouncements of the Texas courts,
     the repeal of statutes by implication is never favored
     nor presumed. The two acts will persist unless the con-
     flicting provisions are so antagonistic and repugnant that
     'bothcannot stand. <therethere,is no express repeal, the
     presumption is that in enacting a new law the Legislature
     intended the old statute to remain in operation. According-
     ly, a repeal by implication will 'be adjudged only when such
     result is inevitable or was plainly intended by the Legis-
     lature. If ny any reasonable construction two acts or
     statutory provisions can be reconciled and so construed that
     both may stand, one will not be held to repeal the other."
     39 Tex. Jur. 140.

Using the a'boveas a standard of measurement, we find little
difficulty in concluding that the statutes referred to can be
harmonized so that both may stand. Ch. Ii(,Art.ll, of the Bank-
ing Code also contains a "shot-gun clause" repealing "all other
laws or parts of laws in conflict herewith." The Banking Code
sets up a "system of laws governing the organization, operation,
supervision and liquidation" of nanks and similar institutions.
It does not purport to be a measure dealing with the subject of
taxation.
Section 16 of Article '7144a, (S.B. No. 412, Ch. lY2, p* 561, Acts
of lY33) on the other hand was a tax measure. Its purpose is
indicated by the emergency clause of the law which reads as
f'0110ws:
     "That by reason of the fact that there is much and unparal-
     leled delinquency and an inadequate enforcement of our
     present...inheritance and other tax laws, and the further
     fact that it is imperative that said'tax laws be strengthened,
     and that an adequate system of enforcement and collection of
     delinquent taxes be provided for, together with the fact that
Honorable H. A. Jamison, page 6     0-5612-A


     the government of the State of 'Texasis losing millions of
     dollars annually by reason of such condition, creates an
     emergency,"etc.
The Banking Code, in the sections thereof previously quoted,
provides in effect that a bank Is authorized to surrender con-
tents of safety deposit boxes and pay deposits to anyone of two
or more joint lessees or depositors. A careful reading of Ar-
ticle 7144a reveals that it does not forbid such payment and is
not in conflict with the foregoing. Article 7144a simply pro-
vides in substance that the Comptroller shall have an opportun-
ity to o'otaina record of a decedent's assets in a bank before
same are turned over to his survivor, which record is of con-
siderable aid to the Comptroller in preventing an evasion of
the Inheritance Tax.
The practical workings of this law are described in a letter
from the Comptroller to this department written in 193S, wherein
it is said:
    "A commission is issued to an agent, who is usually an em-
    ployee of the bank, for the release of such assets without
    first obtaining permission from this office. The ten days
    notice required in the statutes is waived in this procedure."
Thus, under this system, a survivor can obtain his money or prop-
erty, as provided and authorized in the Banking Code, and without
delay', and the Comptroller receives from the bankerwho has been
designated as his agent a written report on the holdings in the
bank of the decedent.
There is nothing in the Banking Code reflecting the Legislature's
intent to depart from its traditional stand against weakening
the barriers that guard against tax evasion. Since all indica-
tions point to the contrary, we hold that this wholesome provi-
sion in our inheritance tax laws stands unrepealed. As above ex-
plained, it is apparent there is no conflict in the opinions
under review.
                                     Yours very truly
                                   ATTORiVEYGElURAL OF TEXAS

APPROVED APR. 29, 1944             BY     Ocie Speer
   G.P. Blackburn                           Assistant
ATTORNEY GENERAL OF TEXAS
                                           J. Arthur Sandlin
                                             Assistant
OS,JAS:AMM
